A former Chief of Training and Operations Officer, Air Vice Marshal Olutayo Oguntoyinbo, had been standing trial for receiving a “gift” of N166m from a contractor under his management, but, was sensationally acquitted of the charge of “corruptly accepting the gift”, last week, at the High Court in Abuja.
The alleged “gift” had been transferred by the contracting company, “Societed’ Equippments Internationaux Nigeria Ltd”, into the account of a company run by the Nigerian Airforce Chief in the course of the contract implementation. Justice Olukayode Adeniyi pronounced the verdict of not guilty of the charge proffered by the EFCC under the Corrupt Practices and Other Related Offences Act, 2000. The “gift”, which had hitherto been forfeited to the Office of National Security Adviser Recovery Account, was now said to have been “erroneously recovered” according to the court’s ruling, and is to be returned to the Air Chief forthwith. “The defendant is hereby discharged and acquitted of the one count preferred against him by the prosecution”, the judge ruled. The judge also agreed with the defence counsel that the prosecution had failed to prove the “gift” was more than just a gift; that it was an inducement in fact. In other words, the contractor in question had not accompanied the deposit of the “gift” with an incriminating note saying: “Here is the bribe as agreed”. Phew! This is either justice at its best or at its worst depending on your sense of outrage about corruption and legal technicality.
To stretch credulity to breaking point even further, the contract was agreed with the (ONSA) Office of the National Security Adviser, it then went through the Chief of Air Staff at the NAF, then, down to Air Vice Marshal Oguntoyinbo for final disposal. It was argued, and the judge accepted, that the chain of command in this case removes Oguntoyinbo from direct influence on the award and implementation of the contract. The judge was not persuaded “that he was in any significant position of influence over the contracts…” The only inference we can draw from the judge’s summation is that the gift was made purely out of the goodness of the contractor’s heart, nothing to do with the award of the contract itself. Is that so? Perhaps, the biggest hole in the prosecution’s case was the inexplicable absence of the contractor’s agent, Mr. Hima Aboubakar, who paid the money into Air Marshal Oguntoyinbo’s company account. So, it was wrong for the prosecution to have sequestered the “gift” “having not shown that the defendant corruptly received the money…”, concludes the judgement.
This judgement cannot and should not stand, it is perverse, and the EFCC should seek to overturn it at the earliest possible opportunity, with Mr. Aboubakar being compelled to testify.
Bribery is a universal scourge with which countries all over the world have been trying to come to grips, particularly more so, in the years since the fall of the “Berlin Wall” in 1989. Bribery involving corrupt officials has been more of a problem in Africa and other developing countries than it has been in Western democracies. To this effect, a number of legislation have been effected in prominent Western countries aimed at helping to stem the tide of official corruption across boundaries. America’s Foreign Corrupt Practices Act 1977, Kleptocracy Asset Recovery Initiative (2010), as well as the UK’s Proceeds of Crime Act 2002, Bribery Act 2010 are two cases in point. Nigeria has been urged to tighten the law in this area as well. Over time, effort has been made to consolidate the effectiveness of various anti-corruption agencies such as The NDLA, ICPC, EFCC and NAPTIP Acts into one biting element. Section 6 of the EFCC Act, 2004 was specifically amended for this purpose. The Proceeds of Crime Act 2014 (s.3) amended S.6 of the EFCC Act thus: “To enable the rapid tracing and freezing of stolen assets and multiple avenues for asset recovery, including confiscation without a conviction, and private (civil remedy) actions”. The judgment in Oguntoyinbo’s case has driven a coach and horses through this amendment.
The problem we have in Nigeria, as elsewhere in Africa, is our over-reliance on criminal jurisdiction to prosecute bribery and corruption cases. It does not work. Bribery and corruption are notorious crimes with peculiar attributes that make them nigh impossible to prove “beyond a reasonable doubt” as happened in the Oguntoyinbo’s case. This is more so because cases of this nature are decided by a single judge sitting alone. We do not have a jury system here as they do in Western jurisdictions, where the “story” can be put to a panel of jurors sitting alongside the judge in court. The jury applies the law as directed by the judge, and also applies the standard of probity expected of the accused by society. There is little doubt that a jury hearing the evidence before the court in the Oguntoyinbo’s case, would have returned a verdict of guilty. That works well in those jurisdictions. Here in Nigeria, we run a different system of single judge sitting alone and rendering judgement.
It bears emphasising that bribery and corruption cases should be taken out of criminal proceedings in the main. We need a paradigm shift from this incessant focus on criminal process to one that makes people accountable as fiduciaries. Civil servants and government functionaries are trustees of the public purse. Any money they come about without an account is clawed back with interest. In Oguntoyinbo’s case, therefore, he would simply have been required to account for the N166m in his account as a person in a position of trust vis-à-vis public funds.
To deploy the civil jurisdiction route, there needs to be a change in the law designed to place a burden on public service employees holding bribes and public funds. A bribe, in that case, becomes a part of public funds, which once given is taken to have been given to the state. It follows the maxim; equity regards as done that which ought to have been done. A bribe once given ought to be handed back to the state and will be disgorged from the resources of the bribe taker, as he is deemed to be accountable for such monies he receives in a position of trust. That being said, all the anti-graft agency needs to do to kick off the process is to open a case against a Politically Exposed Person suspected to be in possession of state funds, and he is made to account for the funds so identified. The beauty of this is that he does not have to be guilty of any offence, he only has to have behaved in breach of his fiduciary obligations. Furthermore, the ill-gotten funds can be traced to personal accounts worldwide, and if nothing is left, they can also be traced to property, including the shirt on his back.
Let us remember, Africans fear the loss of property far more than they do the loss of liberty. We would take a chance on going to jail than risk losing property we plan on passing on to family members. The looter’s conscience does not extend beyond breaking the chain of poverty within his own clan only. The rest can go hang. Spending time in jail has long lost its potency in continental Africa; it has become an anodyne prickle. Jail time does not carry the same opprobrium on the accused in Africa, as it does on the accused in Western jurisdiction. Detailed legal reasoning on this can be accessed via Google: Money Laundering Prosecution and the African PEP: Case for tougher civil remedy options/Tayo Oke/Journal of Money Laundering Control Volume 19 (1) 2016.