The recent decision of the Supreme Court in the case of Chief Bode George v. Federal Republic of Nigeria, is undoubtedly the most significant setback to date for the fight against corruption in Nigeria. In this case, the Supreme Court, as Nigeria’s apex court, abdicates in the most cavalier manner possible its high constitutional role as the guarantor of public values. It also casts grave doubts on the readiness of the judiciary and the legal process to take seriously the fight against corruption and impunity for it in Nigeria.
The facts of this case were straightforward enough. Chief Bode George is a retired one-star General in the Navy and former State Governor. Following the return to civil rule in 1999, he joined party politics. In 2001-2003, he was Chairman of the Board of the Nigerian Ports Authority (NPA), one of the most lucrative parastatals in Nigeria’s public service.
On 8 August 2008, the Honorable Attorney-General of the Federation (HAGF) arraigned Chief George before the High Court of Lagos State on 163 counts related to corruption, along with his Managing Director at the NPA and four other members of the Board that he chaired. The HAGF later amended the charges, pruning them to 68 counts to which Chief George and his co-accused persons pleaded not guilty on 24 October 2008.
In the words of the Supreme Court, the gist of the crimes charged was that “the appellant along with others were alleged to have exceeded the limit set to their authority to award contracts and contrived to bring the contracts within their limits by splitting them while also inflating their prices.”
The amended charges included seven counts of offences under the Corrupt Practices and Other Related Offences Act, 2000; one count of conspiracy to disobey lawful order issues by constituted authority contrary to section 517 of the Criminal Code; 48 counts of disobedience of lawful order contrary to section 203 of the Criminal Code, and two counts of abuse of office contrary to section 104 of the Criminal Code. All these crimes were clearly defined in different written laws in force in Nigeria.
At the end of the trial on 26 October 2009, the trial court convicted Chief George on 40 counts of disobedience of lawful order contrary to section 203 of the Criminal Code and five counts relating to abuse of office contrary to section 104 of the Criminal Code. Chief George appealed unsuccessfully to the Court of Appeal, which dismissed his appeal in 2011.
In its decision on 13 December 2013, the Supreme Court upheld Chief George’s appeal and set aside his conviction. In doing so, the Court claimed that the contract splitting was not a crime known to law in Nigeria, arguing that the “acts said to have constituted arbitrary acts resulting in abuse of office are splitting of contracts which were not offences known to law at the material time. The alleged conduct of ‘splitting of contract’ was not only outside any written law but in fact, not an offence at the material time. The same goes for conspiracy to split contract.” The Court also held that having failed to prove “intention to defraud” on the part of the accused persons, the conviction was liable to be set aside, notwithstanding that the laws under which they were charged did not require intention to defraud as an element of the crimes charged.
The crimes for which Chief George and his co-accused persons were charged and convicted by the lower court were clearly stated and were all part of Nigerian law. Contract splitting was the act through which those crimes were committed. Yet, in order to achieve the result it did, the Supreme Court judgment single-mindedly invented a crime that was not charged, mis-represented the process and mis-applied the law. Having held that a person could not be convicted on the basis of a non-existent law, the learned Justices of the Supreme Court heedlessly contradicted themselves when they to relied on the absence of proof of “intention to defraud” , an element unknown to the relevant laws, as an additional ground for quashing the conviction.
In summary, the decision of the Supreme Court in the Bode George appeal is founded on one baseless invention, one manifest contradiction, a profound mis-representation of the charges as laid, and a cavalier mis-application of the laws. In one sentence, it is a travesty and a charter of impunity for pillage.
On such travesties hinge the fate of millions of Nigerian who suffer compounded deprivation and mal-governance because those who plunder our collective patrimony not only get away with it but have the keys to the vaults of our Commonwealth.
The dramatic abdication of both ethical responsibility and judicial imagination in the Bode George appeal must worry Nigerians and friends who care about the future of the country. Prosecutors who labour under the most difficult conditions to build cases against persons accused of purchasing impunity for themselves for egregious acts of grand corruption have no incentive in the face of such profound mis-carriages, to do their jobs with enthusiasm or commitment.
This Bode-George travesty is the latest in a long line of judicially orchestrated set-backs for the fight against corruption in Nigeria. By way of an example, the Supreme Court paved the way for James Ibori, a serial convict precluded by law from running for or holding high office in Nigeria, to serve two terms as the governor of probably the most lucrative State in Nigeria where his tendency towards habitual larceny reached new levels. Senior judicial institutions have habitually denied justice in cases of electoral corruption and proven acts of corruption against senior judges have become commonplace.
Reversing this troubling pattern of judicial complicity in grand corruption will take time and effort. Firstly, investment in continuing judicial training and doctrine is essential. Secondly, judges can no longer enjoy a presumption of good faith or innocence on questions of corruption. Security and prosecutorial agencies must make the effort to subject them to the same levels of scrutiny that other public officers face on questions of corruption, if not more. Thirdly, judicial appointments must be reformed and the quality, skill and integrity of judicial appointees improved. Fourthly, the new Chief Justice of Nigeria, when appointed later in 2014, must commit to continuing and enhancing judicial integrity reforms introduced by the present incumbent.
Above all, decisions like the Bode George appeal make it abundantly clear, if further evidence were needed, that the fight against corruption is too important to be abandoned to judges alone. Citizens, communities, the media and organized advocacy groups must rise up to require our judges to respect facts, read the law clearly and apply it with good conscience.