Prof Bolaji Owasanoye is the Executive Secretary, Presidential Advisory Committee Against Corruption. In this interview with AMEH EJEKWONYILO, Owasanoye called on Nigerians to own the fight against corruption. He equally advocated for a radical change from Nigeriaa��s current accusatorial criminal justice system which puts the burden of proof on the government.
What are your thoughts on the seeming contradiction between the provisions of the Official Secret Act and the Freedom of Information in terms of make information within government establishments available to individuals or groups upon request and would public servants strike a balance between these two conflicting provisions?
The Official Secret Act, obviously, has colonial origin and history behind it. It is meant to keep the government information secure so that civil servants or those who work for government are not given latitude to release information out to the public which may be misleading. However, given the challenges of governance in modern day society, the people have a right to know how they are being governed; to know the reasons why government takes some of the decisions that it has taken, especially with regard to fiscal matters; accountability issue in regard to finance or how much government is spending on projects, the choices that government has made with contractors and for procurement.
And so, Open Society began to canvass more information to the public, because the only way you can make a judgment is if you have information. So, the Freedom of Information Act was passed basically to mitigate the effect of the Official Secret Act to a large extent except if the information affects the security of the state, then automatically you are not allowed to divulge it. Whereas civil servants had their mouths shut by the Official Secret Act, the FoI Act, tried to open their mouths again by law, but this time in a regulated manner.
So, basically what the Freedom of Information Act does is to mitigate that negative impact of not wanting to share information with the public, especially things that the public really has a duty and urge to know, because it affects them the way governance is going on.
Therefore, shouldna��t the Official Secret Act be repealed first before the coming to force of the FoI Act?
I think what the legislature has tried to do is a sort of balance, because there are situations in which it is not appropriate to give information to the public, there is no doubt about it. As I said earlier, when the security of the state is at risk; the FoI Act actually it gives that exemption. You cannot demand that a civil servant like in the Ministry of Defence should give you information that is sensitive to the wellbeing of the country.
Recently at the international scene, former presidents of Brazil and South Korea, were handed different jail sentences upon been convicted of corruption. While in South Africa, former President Jacob Zuma was brought to court on charges of allege corruption. Why does it seem impossible to bring a former Nigerian president to account for his deeds in office in view of the public outcry of over endemic corruption that has taken place in the past three decades or so?
Well, I will not use the word impossible. I will say that this is a situation that perhaps has not confronted the country in the past but we all coming to terms with it. First of all, in some of the countries that you have mentioned, South Korea and Brazil (Ia��m not quite sure about South Africa), the burden of proof is reverse once an allegation of crime. For instance, if Ia��m accused of having enriched myself illegally, it is not for the prosecution to prove, it is for me to now show how I acquired my asset. In such a criminal justice system, it is easier to conclude corruption cases and bring high-profile people to book. But in systems where the person that alleges must prove which is the accusatorial system that we have here, we have a big challenge on our hands because the law says you must prove beyond reasonable doubt. So, if you accuse a public official of unlawful enrichment, the sensible thing is for them to explain how but they would tell you to prove it; he doesna��t even have to say anything in his own defence. I think it is a major challenge for us.
So, the common law system that has adopted this approach, cases will not conclude quickly. It will be much more difficult, and this is in addition of course to challenges we are finding with regard to criminal justice rules and procedures, the legal profession and the judiciary. So, all of these things now are beginning to open our eyes to the problems that we are facing. And I think we need to take a look at where stand and where we are, and to demand reforms of the system. It means that the reforms that had been done in the past have not done quite enough.
Can the execute arm of government initiate a bill to the National Assembly to change the countrya��s accusatorial system, which has held down swift prosecution of corruption cases?
Anybody can initiate the bill; a private person. As you might know, the FoI Act that we are talking about was not an initiative of government. It was initiated as a private member bill and was pushed through by Hon. Abike Dabiri when she was in the House of Representatives. Same thing with the Administration of Criminal Justice Act, which was passed in 2015. It started as an initiative of the civil society; it wasna��t even a government idea but eventually the government keyed in and then saw it pass through the legislature.
So, the truth of the matter is that anybody can initiate the bill, but it will require the input and the cooperation and support of all stakeholders; the legislature and the Executive in particular. The judiciary will just apply laws that are made. We are talking about civil society, the media and everybody because ultimately, this is going to affect all of us. As I keep saying, if the anti-corruption war fails, it is not an indictment on President Buhari or PACAC on the Ministry of Justice. It is a big problem for the entire country, because impunity will increase.
A�Two years down the line, the whistleblower policy is still in the works at the National Assembly. What is your perspective?
Well, of course the public is a bit disappointed at the number of anti-corruption bills that have not moved as fast as they ought to. But at least we can credit the NASS that it started the process although we wish that it had finished. Because the whistleblower protection act will strengthen the anti-corruption campaign.
Finally, what would be your advice to Nigerians on the need to have a national consensus on tackling corruption in the country?
Well, the truth of the matter is that fighting corruption is an existential issue for us. Except if anybody wants to be hypocritical, corruption has set us back many many years; it has kept the country down, we are not where we ought to be and we are not where the world expects us to be. Clearly, everybody ought to denounce and Ia��m not lip service that, a�?Oh, we are fighting corruption.a�� We are talking about concrete measures. Every arm of government a�� the Executive, the Legislature and the Judiciary, because if we dona��t ultimately, it will come back to hurt us.
You would have seen in social media, examples of legislatures who were hounded out of their constituencies because people felt they (lawmakers) have not performed as well as they ought to have performed. Some legislators have said that they would prefer that they are well-paid and not given the controversial allowances, because most of the times those controversial allowances help them to shut out their constituencies. Now, these are weird measures of trying to achieve governance. But if you agree to fight corruption where money is appropriated for any purpose, you ensure that it is used for that purpose; where appropriated funds are not stolen, then everybody is a beneficiary of that.
Over the years in Nigeria, a lot of money is voted for education but found its way in private pockets. Look at what we are grappling with now; there is no doubt that that there is a correlation between the rise of Boko Haram and long years of neglect, and what is the cause of the neglect? Ita��s corruption!
Because if you look at the budget every year, money is appropriated for schools, if you look at the budget of last year, money was appropriated for schools to ensure that the schools are functional and all that, but you go there the schools are not functional; students are learning under the tree. Now that can hardly always be problem of Abuja or the Federal Government. The people within those locations must also rise up to challenge their own leaders and allow them (leaders) to give them stipends and crumbs to shut their mouths for the moment.
So, it is an existential issue for us; all of us must rise up. And barring any arm of government that ought to be living up to expectation a�� the Executive, the Legislature and the Judiciary, where they are frustrating any anti-corruption effort, the public should unrelentlessly go to that direction and take those people to task because that is the only way. One arm of government cannot fight corruption successfully.
All of us; the entire country must rise up to this challenge.
PROFESSOR BOLAJI OWASANOYE
Member / Executive Secretary, Presidential Advisory Committee Against Corruption
Professor Bolaji Owasanoye is renowned for his expertise in International Economic Law; Human Development and Social Justice Activism. He has been a Professor of Law for about 15 years with the apex legal academic institution in Nigeria: The Nigerian Institute of Advanced Legal Studies (NIALS) where he served as two-time Director of Research, and the first to be conferred with the Taslim Elias Distinguished Professor of Law. He has proficiency in teaching Legal Aspects of External Debt Management, Corporate Law, Legislative Drafting, Human Rights and Strategic Governance amongst others.
A�He has provided academic service to several tertiary institutions including the Lagos State University 1986 1990; Nigerian Institute of Advanced Legal Studies (1991 2015; Professorial Research Associate, University of London School of Oriental and African Studies 2011 to 2013; University of Pretoria (Visiting Professor, 2015.
As a consultant with over 30 years of experience in law development, Prof Owasanoye has consulted for federal and state agencies in Nigeria and international agencies such as UNITAR, UNICEF, USAID, DFID, World Bank, World Bank Institute, ILO, Ford Foundation and ECOWAS. PROFESSOR BOLAJI OWASANOYE Member / Executive Secretary, Presidential Advisory Committee Against Corruption He was part of the reconstituted 9-member Law Revision Committee that produced the 2004 Laws of the Federation of Nigeria, a compilation of the 724 federal laws of the country. He was African Representative on Data Task Force of Child Helpline International 2004-206; African Regional Representatives on Criminal Law Committee of the International Bar Association 2011-2013; Chairman, ECOWAS Drafting Committee on Community Investment Code 2011 a�� 2014; Member African Union Group of Experts on Pan African Investment Code 2013-2015; Member IBA Presidential Task Force on Human Trafficking 2015; He co-founded one of Nigeriaa��s leading social justice NGOs: the Human Development Initiative (HDI). Set up in 1997, HDI has successfully implemented over 50 advocacy projects on human rights, rule of law, governance and anti-corruption, one of which is the celebrated a�?Stop Impunity Nigeria Campaigna�� focused on eliminating impunity in public finance management and promoting civic responsibility. He has won several awards, few of which are: the University of Lagos Scholarship Award (1986 a�� 1987); UN Institute for Training and Research Fellowship Award (1991 and 1994 respectively); U.S. Information Service International Visitors Award (1991); British Council Fellowship Award (1992); International Youth Foundation (IYF-US) Fellowship on Youth and Community Development (1999-2000) and Senior Special Fellowship, United Nations Institute for Training and Research, (2001). He holds Qualifying Certificates in Legal Aspects of Public Debt and Financial Management; Legislative Drafting and Managing Development; Certificate in Negotiating International Trade Agreements and a Certificate in Managing Development Projects. He has published over 100 academic and research projects in national and international journals and has authored/edited over 10 books. He mentors young lawyers and academics in Nigeria and serves as member of the Clergy at Chapel of Christ Our Light University of Lagos and the State House Chapel at the Presidential Villa in Abuja. He is happily married with children.