‘Collaboration between anti-graft agencies and lawyers vital to war against corruption’
The raid and invasion of the residences of judicial officers by the Department of State Services (DSS) has reinforced the mutual suspicion between security agencies and lawyers. Before the recent incident, the Economic and Financial Crimes Commission (EFCC) has had a face-off with lawyers over allegations of protecting alleged corrupt individuals. Security agencies believe some senior lawyers are as corrupt as those they defend. But lawyers resent their methods some times, saying security agencies are usually high-handed and overstep their bound while discharging their lawful duties, and insist they must follow due process. Former chair, Nigerian Bar Association Section on Business Law, Mr. George Etomi, in this interview with JOSEPH ONYEKWERE, conducted at the International Bar Association (IBA) conference in Washington DC, says strong collaboration is indispensable if the fight against corruption must be won.
Starting with the best method to get funds stolen out of Nigeria between litigation and friendly appeals, he said there should be more than one method.
According to him, there is legal action that has criminal angle and does not bother on restitution as well as the civil litigation, where there is hope to recover the stolen funds.
His words: “The down side for the criminal one is that it emphasizes punishment and fines. In some cases, the fines may not be as much as the illicit funds that were stolen. And the fines when they are imposed is for the benefit of the country that has prosecuted. In places like UK and USA those fines don’t come to the place where the money was stolen. It goes for the benefit of the system there. So you have punished the perpetrators but there is no real financial restitution. That is why people recommend civil litigation, in which you trace the funds, sequester the funds, put up all arguments and argue for reparation once you can prove that the funds are stolen.
“Which ever method we chose, it is a long and very tasking procedure especially if the funds we are looking for has passed through so many jurisdictions because you will have to be looking for cooperation and collaboration with different jurisdictions. If you are dealing with six different jurisdictions, it takes you like two years per jurisdiction before you get resolution. Look at what has happened to us in Nigeria, since we established that Abacha stole and exported funds abroad. When did Abacha died? Have we got the money? We have just got a paltry sum compared to what we are talking about and the same thing with Ibori funds. Eleven years on, just a paltry amount. And when the monies are repatriated, interests do not come back. I don’t even know how much that is spent in fighting this cause and in the end, it is just like a pyrrhic victory. That is why my own contributions is to go to the source because most of all these things we are talking about is too much dependent on foreign jurisdictions and there are so many reasons why they may or may not collaborate with you. I know there are lots of international treaties and conventions, yet we never see the benefits of the results.”
On the effort that can be taken in-house, he said the answer lies in working with anti-graft agencies in a manner that helps all of us protect our common good.
He said: “I task lawyers to identify with this fight against corruption so that we first of all remove the perception of ‘we are not against graft’. We are too into the independent of our profession and too into the protection of our clients’ confidence to forget the greater damage to the larger number that corruption brings about. That is why you see this degree of adversarial relationship between the Bar and most of the anti-graft agencies. One thing is very clear; the anti-graft agencies require a lot of help.”
Surely, working with the anti-graft agencies is good, but how can the lawyers bring about the desired synergy, going by the existing distrust between the two? Etomi said it is very important to do so because crimes are getting more and more sophisticated.
He said: “The anti-graft agencies may not be totally abreast with methods by which these guys hide these funds. So, there is no way they will not require collaborations. Very often, what happens is that they run abroad to get this collaboration, because they feel they won’t get help from lawyers – that lawyers often run to defend wrong doers. When you go and do it like that, you will not present the best evidence that can secure you a conviction or a judge agreeing with you to return the money. So our agencies work under that kind of handicap, whereas, if you have lawyers who now specializes in that area, work in collaborative effort with the agencies, if an issue arises, they can always advise. They work like an advisory council. If an issue comes, they can take it to the advisory council, who will take a look at it and tell you there is nothing in it. The agencies are always ready to investigate all petitions that go to them and most times, they are overworked.
“So, if they have a body that can help them filter, then they go for the real key things. In developed jurisdictions, they don’t go after every crime. They pick and choose their fight. But what they do is that anyone they get, they use it as a deterrent. So they work on prevention. As they use a wrongdoer as deterrent, most people tend to become law abiding. So the few that decides not to be law-abiding can easily be profiled.”
With reference to recent interface between EFCC and members of NBA as a result of call for stripping off the prosecutorial power of the EFCC, he suggested that the sour relationship can be fixed through mutual understanding.
His words: “This distrust did not start today. It started in Nuhu Ribadu’s time and the arguments are strong on both sides. Very often as they correctly say, the criminals have the means to engage the best lawyers and that is the truth all over the world. Those lawyers as part of their professional duty, use their best ability to defend their clients. So, that naturally annoys them. Though, I noticed the anti-graft agencies are now beginning to get senior lawyers to help them in prosecution too.
“The other side of the issue is that, many lawyers, especially the human rights lawyers are worried over the method employed by these anti-graft agencies to investigate issues. Many times, the manner in which they obtain evidence cannot stand the rules of evidence in our law courts and that is why most of their cases fail. I give you example: they invite someone to come and assist them in investigation and they first of all detain the person; you bruise the persons ego! How will such a person cooperate with them? Or they want to arrest a person and because he is not available, they pick up his wife or children. At times, all these their methods also provokes the Bar. Having said that, I still believe there is need to collaborate.
“I always give example of the Section on Business Law (SBL). When I was Chairman of SBL, we moved actively to collaborate with what was then the Special Control Unit, the Nigerian Financial Intelligent Unit and all those people in charge of anti money laundry enforcement, we engaged them. They appeared at our conferences both in and outside the country. We came to understand ourselves more and the collaboration was working very well. But that was at the sectional level. It needs to be something that should be wider and acceptable to the whole Bar. While we had to do this in SBL is that those of use who practice business law, especially those that have to deal with international clients, have to comply with these measures because they are global standard, otherwise, you won’t even get the job. You have to sign up to anti-corruption, anti-money laundering, the FCPA, UK branch.
“You have to sign up to all those and we had no choice. So, if they are the agencies that enforces such, you better engage them rather than to fight them. For business law practitioners, that was not an issue. But for our litigation colleagues, it’s a big problem because there are fears about their practice – the tenets, the things that make law what it is. And very often than not, it is dichotomous to what the anti-graft agencies are looking for. But I know we went to court to get a judgment saying that lawyers should not register with SCUMIL.
“The down side was that many lawyers, even the senior lawyers do not know when they are doing the right or the wrong thing, when it comes to these issues. That is why I am not surprised that many of them are being prosecuted today. It is just a thin line between when you are doing your job. Any time you hear anti-money laundering, anti-corruption, it is always a crime. And most times, lawyers are not the target, it is the way the lawyer handles the matter that could make him become the target.”
On whether principals of multi-national Corporation that are allegedly used to launder this funds are not been punished enough, he lamented that they have got punished outside the country more than in Nigeria
“Strangely, they have secured more convictions abroad on corruption matters involving Nigeria than we have done within Nigeria. It boils down to the issue that I raised – poor collaboration between the anti-graft agencies and the legal regime in Nigeria. It is very poor. They have done it abroad ranging from Halliburton, Siemens, and others. Most of the guys pleaded guilty. Those who went to jail went to jail. Those who refunded money and those who paid fine all did them. But we, from where the money was stolen, didn’t get the benefit. That is why my own focus in my paper was that we have to go to the root. I am not questioning anybody’s patriotism. I know that the anti-graft agencies are patriotic and so do lawyers.
That we hold opposing views does not make anyone more patriotic or less patriotic than the other.
“But we must always define a common goal. Corruption has taking the soul of our country away and we cannot, no matter what your calling or how much of your self interests are, pretend it is not there. On the side of government too, we have seen them use the anti-graft agencies to settle political scores. And when that fight against corruption is not supposed to seen to be even handed, there’s also a problem. That is the easiest way to even defeat the fight whereas if there is a common standard and it’s something we all subscribed to, the country would be better for it,” he declared.