Being a presentation by Mr. Abubakar Malami (SAN) Honourable Attorney-General of the Federation (AGF) and Minister of Justice at the 2016 Annual General Conference of the Nigerian Bar Association Held in Port Harcourt, Rivers State on Monday, August 22, 2016.
Introduction
Your Excellencies, Distinguished participants, let me commence my presentation by expressing my appreciation to the President and entire membership of the Nigerian Bar Association for the privilege to speak on this topic at this very important Conference of our esteemed Association. I must also commend the Governor of Rivers State, His Excellency, Chief (Barrister) Nyesom Wike and the Government and good people of Rivers State for the hospitality we have enjoyed since our arrival in the garden city of Port Harcourt and for the excellent facilities which have been provided for this Conference. I am convinced that this Conference will achieve its objectives and will make the Nigerian Bar Association a stronger and more vibrant body by the time it is concluded later in the week.
The assemblage of thousands of lawyers at this Conference is a matter of great joy and confidence in the viability and credibility of our democracy and reaffirms the spirit of the Rule of Law which symbolizes our profession. Lawyers, by reason of their training and inclination, are the best advocates for democracy and due process in any society. Their active participation in formulating and assessing the direction of society as well as reviewing the policies and politics of any Government is therefore necessary if they must continue to play their historical role as societal watchdogs, advocates of social justice and strong voices against impunity and the abuse of power.
Indeed, on a day such as this, we must recall with pride the famous words of the first Nigerian Lawyer, Alexander Sapara Williams who once exhorted us to always remember that:
‘A legal practitioner lives for the direction of his people and the advancement of the cause of his country.’
Over a century after this famous statement, the message it conveys still remains sacrosanct and reminds us constantly that the primary obligation of a lawyer is to the society and consequently, the progress of society should remain the passion of every legal practitioner.
Law in the context of the agenda of the Present Administration
It is against the above background that I approach my presentation which seeks to review the role of Law in advancing the ‘Change’ agenda of the administration of President Muhammadu Buhari, GCFR since its inauguration on May 29, 2015. In light of the current issues of development and inclusive governance with which our country is confronted, there is no doubt that this topic is most relevant and timely to the legal community which is a major stakeholder in our current efforts to renew and transform our country.
Your Excellencies, Distinguished Participants, you will recall that President Muhammadu Buhari assumed office at a time when it was obvious that our country faced fundamental challenges. It was indeed common to hear from Nigerians and foreigners alike, characterize Nigeria as a country long on potentials but short on performance in respect of all major developmental indices. We were regarded in the comity of nations as a fortunate country blessed with both human and natural resources in abundance. Regrettably, for reasons known to all in this room, we had however failed to translate these potentials into performance and break the agonizing and inexplicable disconnect between our vast resources and the debilitating poverty of most of our citizens.
Against the above backdrop, this administration promised Nigerians of its resolve to promptly address the challenges facing our country in the three major areas of:
i) fighting corruption, which had been identified as the single most critical factor that had held our country down and squandered our commonwealth in favour of private acquisitions;
ii) building a safer and more secure country free of the impunity and brazenness exhibited by the Boko Haram Sect and other anti-social groups; and
iii) improving the economy in order to create jobs, especially for our young citizens, and thereby foster inclusive growth in the economy.
Law, as they say, is the secret that binds societies together. In other words, societies cannot progress in a Hobbesian state where life is ‘poor, nasty, brutish and short’ but must instead strive to achieve order and due process in the course of governance. The Buhari administration therefore recognized early that in order to achieve the core objectives above, it was imperative to ensure that the necessary legal framework was put in place or reinvigorated, as the case may be, to drive the ‘Change’ Agenda. Permit me therefore to highlight the efforts this administration has made in the above areas in the past few months, using the instrumentality of the law.
The Anti-Corruption Fight
The present administration’s fight against corruption using the instrumentality of the law and the courts, obviously represents the most visible evidence to the Nigerian public of how our laws can be effectively utilized to achieve the anti-corruption agenda of Government. There is no doubt that our investigators, prosecutors, private Defence Counsel and even Judges have had a very busy time in the last fifteen months as the justice system has become re-invigorated to play the role envisaged for it under the Constitution. We have now seen a justice system which has acquired the capacity to routinely take on hitherto-untouchable public and private-sector figures and insist that they account to the Nigerian people for the criminal dissipation of their commonwealth.
We have seen the tragic evidence of how corruption severely undermined Nigeria’s anti-terror war over the last few years and also seen evidence of how funds budgeted for developmental initiatives and infrastructural facilities grew wings, ended up in illicit private accounts at home and abroad and left our people poorer, sadder and hopelessly more vulnerable. Tackling corruption is therefore the key to our ability as a nation to survive the present odds, achieve our often-touted potentials and take our rightful place in the global comity of nations.
The anti-corruption campaign of the present administration is therefore designed to achieve the following objectives:
i. Prevent the commission of crimes, through the rigorous application of extant laws and regulations including laws in the procurement process, the banking and financial institutions sector and in the management and disbursement of public funds;
ii. Hold persons indicted by investigations accountable by filing appropriate charges against them in court;
iii. Recover, as much as possible, all looted resources of the country currently held unlawfully in private hands and re-direct such funds to the primary developmental objectives of Government;
iv. Encourage and promote greater collaboration and cooperation with foreign State and non-State institutions and persons, as well as multilateral agencies, in order to track and recover all public funds currently stashed abroad by corrupt persons and institutions.
v. Fighting corruption within the ambit of the law and in so doing promoting the interest of justice and supremacy of the public interest as against individual interest.
In pursuing the above objectives, and despite the challenges we have faced, we have achieved significant successes as a nation, in the last fifteen months, as extensively documented in the media. The investigative apparatus of the anti-graft agencies such as the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices Commission (ICPC), the Special Fraud Section of the Nigeria Police Force and the Code of Conduct Tribunal have all been reinvigorated with a view to achieving their statutory mandates.
A significant number of trials are on-going, involving defendants from the political, civil and security sectors of our country. These trials are designed, not only to ensure that the necessary criminal sanctions are applied on convicted persons but also to ensure that we recover our national commonwealth in wrong hands, including, regrettably, funds that were originally meant to fight and defeat terrorism in our country.
On the international scene, there is no doubt that there is a greater global awareness on the part of our international partners that the Nigerian Government now exhibits greater political will in its capacity to pursue and recover national assets abroad. We have therefore begun to receive greater cooperation from all such foreign entities. Recently, we signed an MOU with the Swiss Federation that will ensure the imminent repatriation of USD321 million Nigerian funds in Switzerland. We are equally addressing, through a robust Mutual Legal Assistance mechanism, the legal challenges which had hitherto tied down assets in excess of USD 500 million Dollars in jurisdictions such as the United States, Jersey Islands and the United Kingdom. In January, we signed four critical agreements with the United Arab Emirates, which is a favourite destination of Nigerian funds, to enable us commence long-term cooperation to block and recover illicit funds in that jurisdiction.
Creating an institutional framework for the asset recovery process
A crucial component of the anti-corruption fight is the development of a national capacity to recover and manage recovered illicit assets. Looters of the public treasury often suffer from the illogicality and criminal immorality of stealing so much more than they have actual immediate need for. They are therefore compelled to invest the surplus, so to say, in various forms of assets, either in liquid or material forms such as property. It has long been recognized by Criminal Justice stakeholders that mere imprisonment of guilty persons is not sufficient to repair the damage done to society by such persons. If society must be healed of the harmful effects of illicit property acquisition by unscrupulous persons and institutions, then the law must compel them to make restitution through the disgorgement of the proceeds of crime in order to use such resources to provide critical services to the citizenry.
As a country, we have long lived under the shadow of the absence of an institutional framework for asset recovery and management, thus leading to regrettable gaps in our national efforts to effectively streamline assets recovery and management into the overall Criminal Justice system. The current gaps in our legislation have also led to a situation where Nigeria continues to face the potential erosion of its sovereignty through the insistence of our foreign partners in monitoring the use of recovered funds, due to the absence of an institutional mechanism for the management of such recovered assets.
At present, the procedures for assets recovery and management are spread out across various laws which do not give sufficient guidance in relation to predictability and comprehensiveness, thus rendering them inadequate. In addition, the current laws do not provide for a central management and regulation of procedure to secure assets recovered from suspects, thus creating the possibility of fraud, abuse or poor implementation.
It is to cure the above defects that the present administration took steps to re-transmit the Bill for the establishment of the ‘Proceeds of Crime Agency’ (POCA) to the National Assembly for re-consideration and eventual passage into law. The Bill has become very important in order to enable Nigeria meet international standards in the recovery of stolen assets. The bill will also ensure that there is coordination and proper management of assets recovered from those suspected or convicted of embezzling public funds. In addition, we have also transmitted the Bill on Mutual Legal Assistance in Criminal Matters, which will help to properly define and validate the processes for mutual legal assistance relationships with other countries on a predictable basis.
It is significant to note that several of the initiatives that we are currently pursuing and the successes we have achieved, have occurred despite the fact that no new laws have been enacted to create new anti-corruption agencies or processes. On the contrary, the existing agencies have simply had a new lease of life as a result of positive political direction and the will of the Buhari administration to tackle corruption in the country.
The Law and the Anti-Terrorism Campaign
In articulating and implementing its anti-terror campaign, the present administration has adopted the triple strategies of a military campaign anchored on the Rule of Law, the vigorous implementation of domestic laws designed to counter terrorism and the financing of terrorism, such as the Terrorism Prevention (Amendment) Act 2013, Cyber Crime (Prohibition and Prevention) Act 2015 and the Administration of Criminal Justice Act 2015, respectively as well as the development of legal frameworks for international collaboration to prevent and counter terrorism.
At the United Nations level, Nigeria has signed and ratified all the major instruments agreed upon by the global community to counter terrorism and its financing. We however acknowledge that the ratification of these instruments is not sufficient in itself. We must take crucial steps to actualize their intentions especially through greater regional collaboration. A crucial achievement was therefore designing and signing an agreement among the Lake Chad Basin countries of Nigeria, Chad, Niger and Cameroun to establish a Multi-National Joint Task Force (MNJTF) (which also involves Benin Republic) to tackle Boko Haram in the North-East region.
At domestic level, we are currently undertaking the prosecution of several cases bordering on terrorism and other forms of crime through the work of a Complex Casework Group in the Federal Ministry of Justice and through enhanced collaboration with other agencies of Government.
Pursuant to the enforcement of the Administration of Criminal Justice Act, 2015 which lies at the heart of Government’s efforts to reform the Criminal Justice sector, and in view of the fact that Section 106 of the Act substantially transfers the responsibility for the prosecution of all Criminal matters to the Federal Ministry of Justice, by expressly prohibiting prosecution by Policemen who are not trained Lawyers, the Ministry has so far taken over approximately 8000 Case Files transferred from the Nigerian Police Force for prosecution.
Improving the Economy through the application of relevant laws
In my view, the process of national economic development can only be sustainable when it is lubricated by a deliberate system of laws and processes which enhance social and economic engagements and consequently promote growth and development. National development cannot take place over a long term in an environment which promotes illegalities or lack of integrity. In the world in which we live today, such an environment will not only dissuade the influx of foreign capital but will equally encourage a monumental level of capital flight as investors search for safe havens to protect their resources.
As, the founding Prime Minister of Singapore, Mr, Lee Kwan Yew once said, we cannot afford to forget that public order, personal security, economic and social progress, and prosperity are not the natural order of things, but that they depend on ceaseless effort and attention from an honest and effective government that the people can trust.
In support of the economic policies of the Federal Government, we have pursued a policy that compels our business community to play by the rules and avoid the excesses and abuses of the past. In this connection, I must acknowledge the efforts of the enforcement agencies of government in ensuring that sharp practices by some operators within our banking sector especially through acts of money laundering and criminal diversion of public funds by political actors misusing the banking system are progressively being checked. Substantial recoveries have been made in the above direction and I am positive that by the time the current steps by this administration are fully entrenched, we will have a more transparent and accountable banking system in our country.
Taxation Regime
The reinvigoration of the taxation regime in Nigeria through the transparent application of our tax laws is another area where the Buhari administration is currently using the law to change national attitudes to public revenue and ultimately diversify the economy. There is unanimity among Nigerians that the undue reliance on oil revenues over the past decades has led to a situation where our tax laws were under-utilised for the purpose of raising revenue.
However, since the inception of the present administration, the combination of political will and the effects of dwindling oil prices have resulted in the current vigorous enforcement of our tax laws in order to raise public revenue. Government is also currently involved in efforts to reform the laws in order to improve their scope and depth and in years to come, make taxation the primary source of public revenue in Nigeria.
Role of the Legal profession as critical stakeholders
Despite the best intentions of the present administration, there is no doubt that the task of promoting the Rule of Law and due process in Nigeria, is one that requires the collective commitment of all Nigerians, especially stakeholders within the legal profession. The first challenge is for us all to promote a national culture that will regard obedience to the law as a desirable goal, rather than an aberration. Nigerians must never again allow themselves to be described as rule-breakers at home and abroad. I am convinced that the majority of our people are law-abiding citizens who desire to live in an orderly society guided by law. It is our responsibility as elite in the society to promote the notion of respect for the law through our actions and our comments.
The Judicial arm of Government must also demonstrate its willingness to align itself with the overwhelming desire of our people for a national change and rebirth, through the transparent use of its powers enshrined in Section 6(6)(c) of the 1999 Constitution (as amended) in a manner that protects overall national interests, promotes the predictability of the law, and expeditiously addresses cases brought before it in a manner that will encourage our citizens to continue to have confidence in the judicial process and in democratic governance. Multiplicity of counter judgement and orders by courts of coordinate jurisdiction on the same subject matter by the same parties does not encourage the desired confidence building in the judicial process.
Conclusion
Your Excellencies, Distinguished Participants, fifteen months is indeed an infinitesimal fraction in the life of any nation. Permit me to draw analogies from the on-going Rio Olympics and say that nation-building is a marathon and not a 100-meter dash. The evolution of legal principles in order to change societal attitudes and propel a society to greatness is equally a matter of long-term commitment and determination. While we have made some progress, there is no doubt that a lot more remains to be done particularly in the areas of law reform and in ensuring that our justice sector institutions have the necessary resources to implement their respective mandates.
The present administration has clearly demonstrated its objective to make Nigeria a country where laws count and obedience of the law will become a habit rather than an aberration; a country where citizens will hold their leaders to account and not watch helplessly while leaders squander their commonwealth and thereafter receive chieftaincy titles from the same traumatized citizenry; a country where the law will not be interpreted in a manner that confers unconstitutional immunity from prosecution on certain persons simply because they are perceived in public consciousness as ‘big men’ and a country where our institutions of justice, particularly the courts will do the right thing in all cases, irrespective of whose ox is gored, and in so doing promote a rule of law within the context of public interest as an overriding consideration over and above individual interest.
What remains now is for all of us as Nigerians and ministers in the temple of justice to take this campaign forward in our various corners. As Lawyers, we stand to benefit the most from the entrenchment of law as the instrument of change in the days ahead. I therefore have no doubt that this Conference will help to amplify that vision and generate fresh ideas and initiatives on what we need to do in the days ahead.
I thank you all for your attention.
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