It would be uncharitable not to admit that corruption is our biggest problem. It has done incalculable damage to our nation; hobbled its development, impugned its integrity and dishonoured it in the comity of nations. As Nigerians, we are all tarred with the tar brush.
It would be unfair too not to admit that our leaders battled this scourge even before independence. They are still at it. The First Republic fell because of alleged corruption among the political class – “the ten per centers who made our country look big for nothing” – to re-echo Major Chukwuma Kaduna Nzeogwu. The Second Republic fell because the politicians were roundly accused of allegedly taking more than ten per cent and made the country look too dirty to be proud of.
But despite the various measures aimed at removing corruption as the second name of our country, the scourge seems unshakeable. The harder our leaders have tried the more resilient corruption has become. Corruption is not resilient because it cannot be defeated. It is resilient because even in the thick of every declared war on it, we have been incredibly ambivalent towards winning the war with the grass growing under the feet of the war commanders and their foot soldiers.
Still, we do look forward to the day this country would lose its place behind Bangladesh in the league of the most corrupt nations of the world. It is President Muhammadu Buhari’s declared ambition, obviously, to make that day come under his watch. Great. The war against corruption makes his government a one-item administration. It is fair to acknowledge his determination to win the war, whatever might be the odds against him and his foot soldiers in its prosecution.
His Executive Order 06 issued last weekend is part of that effort and reflects his avowal. He attached a list of 50 prominent Nigerians, all of whom have cases with the EFCC, who are barred under the order from travelling abroad. They are under the watchful eyes of big brother. He believes his latest action is consistent with winning the war. But I believe he has taken a step with enormous implications for our constitutional government and the rule of law. The order could be faulted on several grounds. We take only three.
Firstly, an executive order is not and has never been part of our legal system. In our 58 years of independence, no government, military or civilian, to the best of my knowledge, has ever issued an executive order. Most of us heard of executive orders only when Donald Trump became president of the United States and issued executive orders barring the citizens of some Muslim countries from entering the US for a stipulated period of time. They were controversial orders out of step with the policies of the United States, a country built by immigrants of all colours and hues. If Buhari is tempted to copy anything from an American president, he should look into their history and bring home what decent and successful American presidents did for their country to make it great. Trump does not fit that bill.
Secondly, an executive order treated as law, flies in the face of our constitutional government. Under our form of government, the constitution is the sole determinant of how we are ruled. The president cannot purport to use extra-constitutional means in a constitutional democracy to rule us. Nor should he impose on the country a law or laws not enacted by parliament. Constitutional democracy cannot be mixed up with dictatorship under whatever guise and for whatever reasons without some very serious consequences. We all want the war against corruption to be won, possibly under Buhari’s watch. But that does not excuse the use of extra-constitutional means that puts the axe at the root of our liberty and freedom. It is too high a price to pay by us as citizens to have our rights and freedoms taken away by means other than by those prescribed by our laws and the constitution in the cynical and dangerous way Executive Order O6 purports to do.
Thirdly, the executive order purports to usurp the functions of the judiciary. All those affected by the order are on trial for alleged official corruption. Under our common law, each person is presumed innocent until the court pronounces him guilty. The last time that accused persons were presumed guilty until each could prove his innocence was during Buhari’s military rule, 1984-85. We should not be taken down that path again in a democracy.
The courts are pretty alive to this responsibility and have always acted scrupulously for one important reason: constitutional government protects the rights, the freedom and the liberty of all citizens, be they on trial for some heinous crimes or on allegations of failing the temptation to keep their hands out of the public till. It is the sacred duty of all constitutional governments to expand these frontiers of freedom and not to circumscribe them. The courts should be allowed to do their duty. Even if the pace is slow, an extra-constitutional means to quicken it does not necessarily the president’s avowal or the ends of justice.
Their lordships have always exercised their discretion in granting or refusing to grant travel requests by those on trial before them. There has been no single instance of an accused person granted this privilege refusing to return to defend himself before the judge before whom he is standing trial. Under the relevant laws, including those of the EFCC, the courts have the powers, and have duly exercised them, to make orders forfeiting the liquid or immoveable property of those found guilty as charged. That is the way it is and the way it should be.
Because of corruption, the government must not do violence to our rights as free citizens of this potentially great country. Corruption cannot and must not be used to stand our common law on its head. The war against corruption can be waged and hopefully won by a strict observance of the rule of law and due respect for those freedoms and liberties guaranteed us by our constitution. The integrity of the victory in the war rests on how fairly those accused of alleged corruption are treated under the law. Extra-constitutional orders can easily take us down the unwanted path of fascism. That would be the worst collateral damage from the anti-graft war.
The clue to the issuance of Executive Order 06 is found in the president’s conviction, to quote the headline of Daily Trust of August 27 this year, that “national interest supersedes individual rights.” On August 26 Buhari told the 59th annual conference of the Nigerian Bar Association: “Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place in favour of the greater good of society.”
Chilling. Perhaps we ignored that two months ago but as you can see, the chickens are finding their way home to roost. Executive Order 06 was a carefully thought out enactment to subordinate individual rights and freedoms to national security or public interest. But the fact is this: Nigeria cannot be protected from Nigerians. It is must be protected for Nigerians. We do not exist for the country; the country exists for us. National security and public interest are steps deemed by our government and our laws to make the country sufficiently safe for Nigerians to enjoy the freedom to pursue their legitimate individual interests. And chase the rainbow without let or hindrance.
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