Oby Ezekwesili: Corruption, national development, the Bar, and the Bench – Part 4

Being the text of a paper presented by Obiageli “Oby” Ezekwesili On August 28, 2012 @ the 2012 Nigeria Bar Association Conference, Abuja, Nigeria.

Part 1 of this Series

Part 2 of this Series

Part 3 of this Series

What then can be done to uproot the scourge of systemic corruption in society? In fact more appropriately since we now see how deeply structural the problem really is should we not be eager to first address the fundamental issues of dysfunction of our overall Governance architecture? Should our question then not be “is there any prospect that Nigeria can ever reverse the seeming descent into an implosive cesspool of systemic corruption?”

A very comprehensive picture of the quality of governance in Nigeria emerges from the Worldwide Governance Indicators (WGI) studies. The WGIs aggregate existing measures of governance to produce cross-country performance indicators for six different dimensions of governance, including voice and accountability, government effectiveness, political stability, regulatory quality, rule of law, and control of corruption. The good news is that once upon a time not too long ago, the world saw evidence that even Nigeria had begun making early progress to reversing the misfortune those decades of stifling poor governance and its symptom corruption has had and continues to have on it. As the globally relevant World Governance Indicators studies showed then, Nigeria made progress over the period 2000 – 2008 in such governance dimensions as Rule of Law, Regulatory Quality and Control of Corruption.

It is evident that, key supply-side governance and anti-corruption initiatives including those that serve as deterrent to bad behavior amongst public officials such as the ICPC and the EFCC;those with the objective of instituting structural and institutional mechanisms in the way of running government such as the NEITI, the Due Process Office, the Budget Office and the Office of the Auditor-General; and those efforts aimed at re-orientating Nigerians through enlightenment programs such as the Code of Conduct Bureau, are largely responsible for the significant improvements in many governance indicators such as the percentage of firms reporting bribery; responses on leakage of public funds as well as bureaucracy as constraints to business. ​A closer look at these indicators show that the country made more progress in on voice and accountability, regulatory quality, rule of law and control of corruption.

For added measure, other global studies aligned with the finding of the WGI. In the Competitiveness Report work of the World Bank it found that efforts at ensuring greater integrity in public service during the Obasanjo Administration led to significant improvements in many governance indicators such as the percentage of firms reporting bribery; responses on leakage of public funds as well as bureaucracy as constraints to business.  For instance, over the three year period to 2005, the percentage of firms reporting bribery declined significantly from 98% in 2002 to 60% in 2005.  The largest area of improvement was in public procurement.  Similarly, the proportion of firms reporting diversion of public funds to companies and/or individuals dropped from 100% in 2003 to 70% in 2005. And by the way, the latest edition of the same exercise shows a reversal of that improvement following the release last Monday of the study conducted in 26 states in Nigeria. The report indicated that about 80 per cent of businesses in the country paid bribes to government officials in 2011 to stay in business. The message to take away from the evidence enumerated is that institutions matter and when government direct attention to key governance dimensions, it makes a difference. To consolidate the progress made under the reform agenda of 1999-2007, key supply-side governance initiatives such as the ICPC, EFCC, the BMPIU now the Bureau for Public Procurement, need to be strengthened and made to work as should such other agencies as the Public Accounts Committee.

However, the fight against corruption and demand for good governance must go beyond the actions or efforts of government.  Citizens must get involved as beneficiaries of public policy.  This is why of recent the issue of social accountability and the increased role of civil society and community-based groups have begun to gain prominence.   Demand side approaches to policy and service delivery are currently high on the agenda of governments in the developing world and Nigerian civil society and professional groups like the Bar Association have many countries to learn from.  These countries have promoted the complementary demand side agenda in recognition of the fact that supply-side interventions have had limited success in a number of areas, including improved service delivery which is what increases the chances of poverty reduction amongst majority poor in the society.  The growing importance of social accountability therefore is because of its promise and potential to strengthen governance, increase development effectiveness and empowerment through an approach that relies on civic engagement in demanding accountability from public officials, service providers, and decision-makers (World Bank, 2004).

In the context of Nigeria, demand side approaches have a strategic importance because they provide the platform for strengthening transparency and accountability: In practice, this involves strengthening federal and state systems for procurement, internal auditing and internal control functions, statistical capacity and public financial management to allow Nigeria to better manage its resources.  As part of efforts in these regard, the Government of Nigeria not only makes public the federal allocations to States and Local government but also publishes a large percentage of federal government’s contract awards above a threshold through the Bureau of Public Procurement.   To complement these supply side reforms, there is a need to build in demand-side tools to hold public officials to account.  For example, civil society organizations or non-state actors can play a significant role in making public budgeting more transparent and accountable and can engage in various stages of the budget process that can strengthen the oversight process and accountability in the use of public resources.  They can also partner with MDAs and project implementation units implementing development projects in the delivery and monitoring as well as evaluation of the impact of their interventions. Such tools as Citizen’s Score Card, Beneficiary Assessment and Report, Civil Society Independent Evaluation and other participatory feedback mechanisms in project design and implementation have often been adopted.

For example, under the Education Sector Reforms of 2006, the Community Accountability and Transparency Initiative (CATI) was borne out of the need to ensure that federal funds earmarked for projects that would enhance Nigeria’s Universal Basic Education targets were efficiently used.  The CATI therefore allowed citizens across the country to scrutinize the information provided and with it monitor the actual implementation of the projects and by so doing hold government accountable.  True to promoting the ideals Demand for accountability, we rolled out CATI under our partnership with the Civil Society Action Coalition on Education for All (CSACEFA), an umbrella body for all CSO groups committed to advocacy for education.   Unfortunately I doubt that the initiative which received unsolicited endorsement many years later on the floor of the British parliament may not have lasted beyond my own days in the Education sector. In one of Lambsdorff’s interesting causative analysis, he found that “Democracy obtained the expected positive impact on absence of corruption. However, this impact was more complex. Only countries with high levels of democracy, or electoral systems with high rates of participation, are able to reduce corruption. Medium levels of democracy can even increase corruption. The effect of democracy is also not immediate but takes decades rather than years. Thus, democracy reduces corruption in the long run, but not the lukewarm type of democracy.

Thus such strategic importance of demand side approaches and the absolute engagement of citizens in its processes and activities have several important implications. One such is the need to come to terms with a changing institutional landscape with new and evolving configurations of actors and relationships.  Strengthening the demand-side of accountability by deepening support to wider stakeholder involvement in decision making, monitoring and implementation is critical.  The desired outcomes of such an emphasis are improved service delivery, enhanced public participation and local ownership of reform agendas, greater transparency of decision-making and wider public access to information. Governments that involve the public will be in a better position to make good decisions, and decisions will enjoy more support once taken. Therein lays the linkages in our topic for it is all of the aforementioned that sustained over time become the solid pillars for national development.

So beyond the usual platitudes on the important role of the judiciary, the bar and their law enforcement colleagues in causing or tackling poor governance manifesting as corruption what else is new? I mean nothing that is short of a new burst of ideas in their respective roles can succeed in repositioning our Judiciary and Bar in Nigeria. Of course, I should still raise the usualby reiterating how they could help improve governance by strengthening the mechanisms that detect and prevent corruption. In the justice sector, having the Judiciary with its new leadership that we have been told interlaces the distinctively feminine attributes of resilience with a strong intellectual knack and determination to leave a legacy, it may not be long before we began to see the fruits of effort at improving the administration of justice and promoting professionalization of the judiciary and a more transparent justice system with ease of access to all judicial information; perhaps even introduce the novelty of Justices negotiating a code of ethics for all Judges like your Moroccan counterparts (the Moroccan judges’ association vigorously promotes adherence to its Charter of Judicial Ethics by its members) . and such other measure common to any ambitious program of judicial reforms. Yet, such progress will be lasting only to the extent that it is the result of the profession and the judiciary fully asserting and inserting their true powers and roles for society which for too long has been subordinated to individual caprices. For the latter; the power to sanction as a veritable tool of deterrence and for the former, co-leading and building a vibrant coalition to promote the Demand Side for accountability role of citizens(including particularly a rainy season clean out of the profession’s Augean stable through a “Bring Back Our Ethics and Values” initiative by your association). You can then perhaps even go further again like your Moroccan contemporaries who have been working to fight the country’s endemic corruption by using their association, The Union of Young Lawyers to open an anti-corruption legal advocacy center (ALAC) in 2010. The advice would further be to do thiswithin the same ambit of deterrent, preventive and advocacy/activism measures of the other two arms so that it fully completes the tripod in any comprehensive set of integrated anti-corruption menu.

Whatever may be the level of epiphany that the new leadership could lead the Judiciary and the rest of their profession to undergo I must still insist that no durable structural change of the corrupted Nigerian society will crystalize without our going back to where I started from- Good Governance! The keys to good governance, as articulated by the United Nations Development Program being the rule of law, participation, and accountability and transparency means that theinstitutions of the judiciary branch and the legal profession at large have an indispensable role toplay in these two areas: “the judiciary is the bedrock of a society functioning according to the rule of law, and it can ensure that other institutions of government and individual leaders are held accountable for their actions”.

The foundation of every democracy is of course the Constitution. A good (note that I did not say perfect) constitution is one that evolves out of the multiple experiences and aspirations of a people who though divided along the lines of diverse persuasions yet being divinely co-located to become one nation become adept at using principled dialogue to build their consensus on certain core values, ethos, principle, structures, processes and functions that promote equitable development of their country and constantly improve the well-being of their citizens. The experiences of many other nations have shown that any constitutional process which from the very beginning anchors its fundamentals on the twin concepts of incentives and sanctions have often delivered better political, economic and social outcomes for citizens both as individuals and as a collective. Therefore, if we all agreed that our problem is deeper than what an even solid comprehensive anti- corruption program can solve then the next thing should be an to discuss if there is an agreement that engendering a new Nigerian constitution from such an incentive-sanctions framework is an imperative.

Should there be a consensus around that, then some key questions that should arise would be “How can we realign the incentives and sanctions in a functional structure of our entity called Nigeria?” “How substantive and germane to the fundamentals of our structural deformity are the current priorities of the National Assembly Constitution Review Committee?” “What can we learn from our sister country Kenya (similarly troubled by governance challenges) and which upon experiencing an explosive and costly wake-up call seized the moment and commenced a structural overhaul of their polity and its entire governance framework through citizens’ driven constitutional review process”.

I should expand some more on the last question. The Kenyan constitutional process produced a new 2010 Constitution that every Kenyan stands protective of because of their true ownership of its content through a Referendum. Today, most citizens and outsiders who are abreast with the politics and economics of Kenya as I was in my previous position at the World Bank all acknowledged that there are indeed early signs of salutary impact on Governance and what changed in their judicial arrangement is a major contributor to this fresh optimism. For Kenya, receiving cautious praise on Governance even from renowned skeptics is already a signal that they have taken that legendary right step in the direction of the 1000miles travel.

 

Is it farfetched to imagine that our Judiciary can courageously step up its leadership on the constitutional debate? Could it demonstrate the strength of will by reaching beyond the shores of our land to learn some of the lessons of the Indian judiciary which has earned a reputation for being the arm of government that pushes the boundaries in ensuring that Good Governance is rarely compromised and undercut by the short term and shifting political incentives of the parliamentary and executive arms of government. Justice Y.K. Sabharwal, Chief Justice of India until 2007 said in an inspiring speech during his tenure that “in order to guarantee that the role of law would inure to, and for, everyone and the promises made by the Constitution would not remain merely on paper, the Constitution makers made provisions for independence of the judiciary. Judiciary in India enjoys a very significant position since it has been made the guardian and custodian of the Constitution. It not only is a watchdog against violation of fundamental rights guaranteed under the Constitution and thus insulates all persons, Indians and aliens alike, against discrimination, abuse of State power, arbitrariness etc. but borrowing the words of one of the founding fathers of the American Constitution, James Medison, I would say that the Judiciary in India is “truly the only defensive armor of the country and its constitution and laws”. If this armor were to be stripped of its onerous functions it would mean, “The door is wide open for nullification, anarchy and convulsion”.

The Kenyan lawyers were activists and advocates for this first of a kind participatory and substantive constitutional process since their independence. Can we ever dare to hope that the voice of our Bar Association will be heard on the on-going process that unwittingly seems like a purely politicians led constitutional review in Nigeria in that despite the best intentions of the leaders of the national Assembly it still the credible voice and participation excludes the larger majority of citizens? Should our modern democracy be allowed to miss one major opportunity to fully practice that key concept of participation and inclusion that Good Governance advocates by ensuring that the broader society with careful attention to minority and vulnerable groups are brought into the discussions that will determine those thorny but strategic issues that are fundamental to the structural overhaul and re-balancing of our polity? Does your Bar not have an incentive to complement my proposed judicial activism just like your colleagues in India who were applauded by their Chief Justice?  Further on in the same speech that detailed the primus role of the judiciary in promoting good governance by insisting adherence to the rule of law he stated, “The rule of law, one of the most significant characteristics of good governance prevails because India has an independent judiciary that has been sustained, amongst others, because of support and assistance from an independent Bar which has been fearless in advocating the cause of the underprivileged, the cause of deprived, the cause of such sections of society as are ignorant or unable to secure their rights owing to various handicaps, an enlightened public opinion and vibrant media that keeps all the agencies of the State on their respective toes.

“An independent judiciary is important for preserving the rule of law and is, therefore, most important facet of good governance. The judicial system has an important role to play ultimately in ensuring better public governance. There may be a plethora of regulations, rules and procedures but when disputes arise, they have to be settled in a court of law. There is no area where the judgments of Supreme Court have not played a significant contribution in the governance – good governance – whether it be – environment, human rights, gender justice, education, minorities, police reforms, elections and limits on constituent powers of Parliament to amend the Constitution.”

Appreciating such a judicial context as remarkable as the Indian one, should our own Judiciary at a time like this when the discussions on the amendment of the constitution is reaching a crescendo not be more courageous in aligning with the voices of agitation that seek to have your own arm of government become truly independent and not beholden to corrupting interests. In so doing, would it not offer renewed hope to our society which has watched with great distress and even despondent resignation the not at all dignifying trend in adjudication of corruption charges (both political and economic) in our recent history? May be you already know, but I shall take the liberty of your inviting a “not so learned” chartered accountant cum public policy expert like me to your event and pass on a message generally given by those who knew of your kind invitatio1n to me “Nigerians are at once disappointed and worried for your profession and the entire Justice system”.

Most now say that we crossed the Rubicon once even our Judiciary, that same very last hope if the common man and woman in the golden era of your profession, became engulfed in what seems like an orchestrated “Kidnap of Justice?” I heard that term poetically used by one of the prodigiously talented young Nigerians that recited an Ode to Justice only this past weekend at a youth event by The Future Award, a youth group determined to behold The New Nigeria. If you heard the words of that poem, something tells me that some of you would rise into action and become that Remnant group that has always historically paid the price for the greatness of the multitude. There is a price to be paid for the return of our Lady Justice. So my last word is “who among us is ready to let character be their destiny?” Count me in should you need a slightly learned friend!

 

This is a 4-part series. Part 1 was published on September 1, 2012, Part 2 and Part 3, yesterday. Part 4 is the final part of this series.

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