Buhari can’t have it both ways
Last month, African leaders gathered in Mauritania’s capital Nouakchott to discuss ways to fight corruption. President Muhammadu Buhari of Nigeria rose to power in 2015 on the ticket of tackling corruption; his pledge was to stop public officials from looting the country’s coffers. He coined the phrase: “If we don’t kill corruption, this corruption will kill us.”
Buhari has backed his commitment by putting in place some important measures such as the Treasury Single Account (TSA) — a single account to manage government payments — the Whistle-Blowing Policy and the establishment of the Presidential Advisory Committee Against Corruption, to combat the systemic theft of public resources and its pernicious effects on human rights and development.
The TSA in particular aims to pave the way for timely payments and the capturing of all revenues going into the government treasury without multiple banking arrangements.
But real progress is yet to be made with respect to prosecution of grand corruption cases. High-ranking corrupt officials rarely end up in jail; they continue to exploit the flaws in the justice system and the anti-corruption legal and institutional mechanisms, to the point where many still profit from their crimes.
Part of the problem is the authorities’ disdain for the rule of law, as illustrated by the tendency to pick and choose which court orders they comply with. This selective application of the rule of law implies an agenda to delegitimise the judiciary, and perhaps render it incapable of contributing to the anti-corruption fight.
Buhari has put the rather slow pace of his government’s fight against corruption down to “lack of co-operation by the judiciary”. As he puts it: “In fighting corruption, however, the government would adhere strictly by the rule of law. Not for the first time I am appealing to the judiciary to join the fight against corruption.”
But although the judiciary may not as yet be up to speed in terms of accelerating the hearing of high-level corruption cases — consistent with the Administration of Criminal Justice Act of 2015 — and adopting an activist-cum-public-interest approach to such cases, judges can do very little if the investigation and prosecution of grand corruption cases continue to be poorly handled.
Buhari cannot, on the one hand, blame the judiciary for “failing to work” with his government in the fight against corruption while, on the other, his officials disobey court orders from the same judiciary.
Yet obeying court orders is the bare minimum required of Buhari by his constitutional oath of office to: “preserve, protect and defend the Constitution of the Federal Republic of Nigeria ”, and by extension, defend the independence of the judiciary.
But the attitude of the government to court orders has fallen far short of this constitutional commitment.
Court orders that are yet to be complied with include those obtained by human rights lawyer and senior advocate of Nigeria Femi Falana, particularly the judgments by Nigerian courts ordering the establishment of education banks to assist poor students to obtain loans to pursue tertiary education, restoring the People’s Bank of Nigeria’s ability to provide loans without collateral to underprivileged citizens, and more recently, the release of Islamic Movement of Nigeria leader Sheikh Ibrahim El-Zakzaky and his wife Zeenah from unlawful detention.
Other high-profile judgments the authorities are refusing to obey include at least three judgments obtained by the anti-corruption group Socio-Economic Rights and Accountability Project. The first is the judgment by Justice Hadiza Rabiu Shagari, ordering the government to tell Nigerians about the stolen assets it allegedly recovered, with details of the amounts recovered.
The second judgment, by Justice Mohammed Idris, ordered the government to publish details about the spending of stolen funds recovered by successive governments since the return of democracy in 1999, and the third judgment, by the Ecowas Court of Justice in Abuja, ordered the Nigerian authorities to provide free and quality education to all Nigerian children without discrimination.
Disobedience of court orders is inconsistent and incompatible with any definition of the rule of law. It’s very difficult for any country to combat corruption successfully if its government doesn’t obey court orders. By extension, citizens are also unlikely to do so.
The government has claimed that obeying the judges’ decisions would require an assessment of “national security” implications and their potential to spark a crisis. However, this position is the exact opposite of the rule of law.
It is the responsibility of every law-abiding government official to obey the decisions of lawfully constituted courts, including those they may dislike.
The government can disagree with court orders, but if it has issues with any of these orders, it ought to use all available means of appealing them rather than refusing to obey them.
Supporters of the government may point to Buhari’s political will to fight corruption. To his credit, Buhari has shown some level of political will to fight corruption, at least when compared with the record of his predecessor Goodluck Jonathan, who once said: “Stealing is not corruption.”
Make no mistake: If Buhari fails to demonstrate commitment to obeying the judges’ decisions — such as those mentioned — he will be striking at the foundation of the Nigerian constitutional order, and suggesting that his government is above the law.
Buhari should embrace the rule of law as a logical extension of his commitment to killing corruption. The rule of law can check corruption and abuses of power.
If the fight against corruption is to succeed (and by extension, the rule of law is to be upheld), it is vital that court orders are rigorously and predictably enforced.
Dr Kolawole Olaniyan is the author of Corruption and Human Rights Law in Africa and a legal adviser at Amnesty International