Nigeria's unending scandals: Time for a step aside option, By MJ Balogun

Nigeria will do well to learn from Namibia’s experience. At least, public officials facing allegations of wrongdoing should no longer be told to “go and sin no more”. They should be asked to step aside pending the conclusion of investigations into their alleged misdeeds. Also, candidates being considered for high-profile jobs, including ambassadorial ones, should come with impeccable records. Any of them facing criminal or corruption charges should be dropped until they successfully discharge their legal obligations.

I watched a video recently. Since it came without a caption, let us simply call it the “inter-generational curse” video. Fortunately, what matters is not the name by which it is called, but the story that it tells. This is the story of a people making the same mistakes over and over again without learning any lesson therefrom, talk less of making amends.

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One mistake that has been repeated times without number is the lackadaisical handling of scandals. Since wrongdoers rarely get punished, bad behaviour seems to have become a tradition, if not a badge of honour.

Indeed, no day passes in which ordinary citizens are not regaled with stories of malfeasance in high and low places. The script is by now familiar, with the government parading high-ranking officials with cases to answer, and the officials either going scot-free, or worse still, getting rewarded with one cushy job or the other. The cases they have to answer often suddenly and mysteriously get cold and eventually forgotten by an increasingly apathetic public, which is inured to wrongdoing at high echelons of government.

Reports and rumours of high-level wrongdoing persist for at least two reasons. First, no credible effort has, till date, been made to address the underlying cause of the unending scandals; notably, endemic corruption. Since the dawn of independence, Nigeria has gone through the motion of “combating” the monster, all to no avail. Second, officials accused of corruption are rarely compelled to leave their posts, answer questions put to them by independent investigation panels, and clear their names.

The latest soap in town is that starring a cast of characters, with Mr Femi Gbajabiamila, Chief of Staff to the President, in the lead role, one Adeniyi Adeyemi Mathew as the antagonist, and the Presidency playing the part of the quintessential damage control specialist. Since the show is just starting, it is too early to predict the twists and turns or to tell who is the hero and who is the villain.

The government’s response to the latest challenge of public trust follows a known pattern. How else does one interpret the Presidency’s decision to insert itself into a crisis which it ought to be seen to be handling even-handedly? Instead of allowing the Chief of Staff to defend himself, the government has instructed its own spokesman to double as the embattled official’s mouthpiece! The government has so far rejected the increasingly strident demand for the Chief of Staff’s suspension.

The Gbajabiamila-Adeyemi saga is not the only one that has recently held Nigerians spellbound. Another, though less publicised, story is that of the nomination of an academic with high-level connections for an ambassadorial post. Ordinarily, an ambassadorial appointment is neither newsworthy nor controversial. However, this is no ordinary appointment. It is one that was purportedly bestowed on a candidate who had yet to answer questions arising out of civil proceedings and sundry criminal charges brought against him.

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Opinions are divided on the propriety of shortlisting someone with unresolved civil and criminal issues for a high-profile job. According to one school of thought, being a party in a civil case in no way derogates from a citizen’s right to compete for full and fair consideration for public office. The school, in its legalistic mode, contends that there is nothing wrong in considering an accused person for a top government appointment, in-so-far as he has not yet been found guilty of the charges brought against him. The same logic applies to officials who are already on the job but are faced with unproven allegations.

The second school of thought, however, views the matter differently. While agreeing with the submission that appointment to, or in retention in, public office is not determined by the commencement of civil proceedings, this school draws the line when it comes to considering a person facing criminal charges for public office. The pendency of criminal proceedings, the second school argues, is sufficient ground for removing the accused person’s name from the list of those running for public office, and for asking an incumbent in similar situations to step aside until he clears his name.

The first school will appear to have a point regarding the appointment or retention of a person who has not yet been found guilty of any crime. In common law jurisdictions, an accused person is presumed innocent until s/he has been given adequate opportunity to defend her/himself and is eventually found guilty.

However, as one who has engaged institutions from both the theoretical and practical angles for a considerable length of time, I find the first school’s argument badly flawed. To start with, the law which the school anchors its argument on, has, at least, two faces, with one looking at the letter, and the other, the spirit of the law. But that is not even the point. The point which the first school clearly misses is that what is legal is not necessarily virtuous or ethical. Where the law decides guilt or innocence, the act of governing looks beyond legal contestations and factors in the considerations of virtue, probity, integrity, equity, justice, accountability, and all those norms which together determine the credibility of rulers and foster citizen trust in government. In other words, questions of guilt or innocence are answered in the law court, while right and wrong fall within the broader purview of governance and public administration.

Anyway, the law is a reliable arbiter only in societies that place high premium on the dispute arbiter’s defining attribute, meaning, predictability. Nigeria is clearly not yet one of those societies. Instead of allowing the law to arbitrate in a predictable way, the informal networks operating in Nigeria’s ‘hard’ environment (e.g. political parties, kinship groups, sectarian bodies, cultural associations, traditional authorities, business associates) frequently intervene to hold the law hostage and to bend it to their will. For instance, a public official is accused of large-scale fraud and embezzlement. All of a sudden, his court appearance is viewed as evidence of one ethnic group’s conspiracy against another. The accusations that appear in print are not as fatal to the cause of legal predictability as the subterranean influences exerted on court officials. Unless and until the letter and the spirit of the law are uniformly interpreted and applied across jurisdictions, it is inadvisable to allow legalism to hold the machinery of government captive.

In plain language, a legalistic formula won’t cut it where corruption is rife and the integrity of government officials is constantly impugned. In the selection or retention of public officials, the emphasis should not be on the guilt or innocence of a particular crime suspect. The paramount considerations should instead be the credibility of institutions, the redemption of the image of rulers, and the reinforcement of citizen trust in government. The question should not be whether a crime suspect holding or eyeing a public office is guilty or innocent of the charges, but whether s/he should be considered for, or retained in, the office in the first place. Yes, a public official accused of sundry crimes should be presumed innocent until the courts find him guilty. Even then, the government will be within its right to ask the suspect to step aside until he clears his name.

Keeping a person facing criminal charges on the job is fraught with dangers. First, impartial and thorough investigation of a crime becomes virtually impossible where the suspect is in a position to destroy or mutilate vital evidence. Second, the office that he occupies is liable to turn into a shield affording him opportunities to intimidate witnesses. Those contemplating testifying against an accused person will most likely assume that he is “well connected”. The witnesses will thus fear reprisals in the event that he is discharged and acquitted. Third, keeping a crime suspect on the job sends wrong signals to trustworthy public officials. If a crime suspect remains in office, his law-abiding colleagues and subordinates will start wondering whether honesty really pays, and whether they too should not join the ranks of the untouchables. Fourth, even the crime suspect will begin to rationalise his own depravities. Five, nothing lowers public trust in the state than disconnecting public officials’ crimes from the expected punishment. Unless an embattled official is separated from the government, the stains he brings will rub off on his employer, the government.

Are there outside lessons that can be of benefit to Nigeria? I surely hope so. As a matter of fact, the issues raised in the preceding paragraphs were precisely those which influenced my team when drafting the Performance Agreements that Namibian Cabinet Ministers and other high-ranking public officials eventually signed with the then President Hage Geingob in September 2015.

One clause in every Performance Agreement clearly stipulates that any Minister or official facing a corruption allegation must immediately “step aside” and clear his/her name. In other words, no Minister or official could cling to his official position while the investigation of his alleged misconduct was in progress.

The “step aside” clause was put to a test in 2019 in the wake of the widely reported “Fishrot Scandal.” Two Ministers (Bernhardt Esau, minister of Fisheries and Marine Resources, and Sacky Shangala, minister of Justice and Attorney-General), had been accused of facilitating preferential access to Namibia’s fishing quotas for an Icelandic fishing company.

The government had the option of suspending both ministers, that is, of asking both to “step aside” pending the conclusion of investigations. This was the option that was clearly spelt out in the accused Ministers’ Performance Agreements, and which they, like other ministers, signed. However, considering the level of public discontent over the matter and since the scandal broke out in an election year, both ministers considered the gravity of the offence and tendered their resignations. Neither availed himself of the “step aside” option. After their guilt was established in court, both were sent to jail.

The government was glad to be rid of the erring ministers. President Hage Geingob’s second-term bid would have been jeopardised if he had allowed personal, or partisan political, sentiments to colour his judgement.

It does not mean that Namibia has totally “wiped out” corruption with the “step aside” weapon. However, that weapon has served as a powerful disincentive to high-level indiscretion in Namibia. It has discouraged reckless behaviour at the highest level of government. At least, corruption is not as rampant in Namibia as it is in Nigeria. Even Transparency International consistently ranks Namibia higher than Nigeria on public integrity.

Nigeria will do well to learn from Namibia’s experience. At least, public officials facing allegations of wrongdoing should no longer be told to “go and sin no more”. They should be asked to step aside pending the conclusion of investigations into their alleged misdeeds. Also, candidates being considered for high-profile jobs, including ambassadorial ones, should come with impeccable records. Any of them facing criminal or corruption charges should be dropped until they successfully discharge their legal obligations.

MJ Balogun is a former special adviser to the President of the United Nations General Assembly, New York.