Vie Internationale with Bola Akinterinwa
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International relations, as a discipline or relationships, is essentially about diplomacy at the level of government-to-government and about international life with the inclusion of non-governmental actors, and particularly when factoring in citizen diplomacy. Actors in international relations are variously described as weak, strong, developed, developing, First World or Second or Third World, powerful or not powerful, etc. Even among the powerful and the developed countries, distinctions among them are still made: super powers, great powers, middle powers, small powers, etc.
What is important about the classification of actors in international relations is that it is largely determined by objective pursued and means applied. In other words, when a country is considered great, it is the means available to it in the attainment efforts of the country that is in question. When it is said that all member states of the international community have sovereign equality, this is true only at the level of political rhetorics but never true in practice as countries have more means than one another. Even at the level of all countries which qualify to be called developed, their means are not equal. This is why the concepts of development assistance or aid, grants, donations, international humanitarian aid, etc, do exist.
Consequently, if international relations is generally characterised by crises and conflicts, order and counter order amounting to disorder, and the world of today is gradually renewing the post-World War II Cold War politics, it is the failure of good management of objectives and their means that is generally responsible for the resultant effect: deepening of threats to global peace and security. In other words, the objective of neutralising corruption and the new method of addressing it in Nigeria is what is generating unnecessary controversies in Nigeria of today.
At the level of objective, President Muhammadu Buhari (PMB) wants to make history by seeking a permanent solution to the hydra-headed problem of endemic corruption in Nigeria. Corruption was recognised as the bane of the Nigerian society in 1967 and no solution to it has been found since then. In fact, corruption has been institutionalised, it has become systemic and has also been identified as a major dynamic of development setbacks.
However, determined to take the bull by the horn, PMB opted to climb a new step on the anti-corruption ladder in an attempt to move beyond simply doing battle to declaration of a total war on corruption and indiscipline in Nigeria. Until now, the battle has involved, in the main, the non-use of force to deal with not just suspects but also the people known to be creating or constituting obstacles to the corruption containment effort of Government.
True, on Saturday, 8th October, 2016, agents of the Department of State Security (DSS), raided and arrested in a sting operation some notable judges in different parts of the country allegedly for involvement in very corrupt practices. Two Supreme Court Justices, Sylvester Ngwuta and Inyang Okoro were arrested. Two judges of the Federal High Court Adeniyi Ademola (Abuja Division) and Muazu Pindiga (Gombe Division) were also arrested. Another judge, Justice Nnamdi Dimgba of the Federal High Court, Abuja, was raided but not arrested. Thisday reports have it that two judges who had been dismissed a week earlier, Justice I.A, Umezulike, Chief Judge of Enugu State, and Justice Kabiru Auta, a judge of Kano State High Court, were raided in Enugu and Kano respectively. Justice Mohammed Tsamiya of the Court of Appeal, Ilorin, was similarly arrested. The Acts of arrest reportedly took place between 12 midnight and 1 am. The corruption suspects were granted bail on the basis of self-recognition the following day.
Reactions to the arrest of the judges have more implications at the foreign, than at the internal, level because, speaking grosso modo, the factor of externality has always taken precedence in interactional relations. Every individual or given stratum of society always factors the perception of others about them, especially in relating to them. Everyone wants a positive self-projection. Put differently, when Nigerians begin to condemn the action of the DSS, what informs the condemnation? To what extent is the external consideration of the content of the condemnation?
For instance, as noted earlier, the DSS raid has generated much interest and controversy as regards the timing and the manner of the arrest.
A dominant school of thought strongly condemns the use of military tactic in dealing with people seen as belonging to the hors classe and also considered to be the last hope of the common man. In other words, justices are seen to be untouchables and should not be treated like ordinary citizens. The main rationale of this school is that the war on corruption is right but it must follow the logic of rule and spirit of law.
The Controversial Debate
Rivers State Governor, Nyeson Wike, sees the operation as an undemocratic illegality perpetrated against the judiciary. Chief Maxi Okwu, legal practitioner, said ‘we are not talking about the individual judges and what they did or may not have done. The issue is that the issue of institution of judiciary is the arbiter, that means it should be revered and not trivialised or disgraced.’ More significantly, he argued that the appropriate procedure is to ‘remove the judges first. A judge of the High Court or a superior court cannot appear in the dock, it would rubbish the judiciary forever.’
Justice Ebenezer Adebajo, retired judge of the High Court of Lagos, has noted that ‘the way and manner the DSS has gone about the arrest of the judges has shown an intention to destroy the judiciary. It is an attack on the judiciary itself. Not just on these judges, but an attack on the judiciary and the NJC is the party to blame…What we are seeing now is the attack of the dogs of hell. How can such a thing happen to a judge? What is the respectfulness for an institution of a state?’’ In the thinking of Justice Adebajo, ‘it is stated in the Constitution that the first port of call for any complaint against a judge is the National Judicial Council (NJC)’ (The Nation, October 10, p.6).
Many seasoned lawyers also hold the view that it is the NJC that has responsibility to discipline any erring judge, and therefore argues that the DSS has erred in its action and that the DSS does not really have the power to engage in financial matters but only in security and intelligence matters. In fact, Barrister Olisa Agbakoba, former President of the NBA, asked whether the DSS is still the same thing as the former SSS. He believed that the DSS cannot engage in any ‘sting operation’ generally reserved for the hardest criminals.
The Senate condemned the act of breaking into the house of serving judges, using hammer and chisel and therefore set up an ad hoc committee to inquire into laws so far promulgated and dealing with invasion of properties and to report back within 4 weeks.
In its first reactions, the Federal Government explained on 9th October that it was not the judiciary that was targeted in the operation but corruption. As explained by Mr. Shehu Garba, the Special Assistant, Media and Publicity, to PMB, ‘the recent surgical operation against some judicial officers is specifically targeted at corruption and not at the judiciary as an institution… To suggest that the Government is acting outside the law in a dictatorial manner is to breach the interest of the State,’ mainly because the DSS obtained ‘all due processes of the law, including the possession of search and arrest warrants’ before the operation (Daily Sun, October 10, 2016, p.6).
Consistent with the government’s position, another school, while not necessarily disagreeing with the need to respect the rule of law, supported the manu militari approach of Government. It posits that there cannot be one law for one group of Nigerians and another for other groups of Nigerians. Put differently, there should be equality of every citizen before the law.
More important, Professor Itsay Sagay, Chairman of the Presidential Committee on Anti-corruption, argued on October 11 that corruption has become an epidemic in Nigeria, and therefore the NJC, which can only deal with normal situations, is not in any position to deal with corruption as an epidemic. In fact, he said the Nigerian Bar Association, corporately or individually speaking, does not have any moral right to speak and criticise or condemn the DSS for its action because it is precisely the lawyers, particularly the senior lawyers, who used to carry millions of dollars to the judges. As he put it, it should be ‘sad, very sad in their mouth’ to come into the open to condemn what they had been aiding and abetting secretly.
Apart from the President and his vice, the Governor and his deputy, no other citizen of Nigeria has any immunity from criminal processes on the basis of Nigeria’s 1999 Constitution as amended. Besides, he posited that democracy should not be allowed to be shut down as people who contest and win election and have their hopes dashed because of corruption are not likely to be tolerant. The situation can precipitate a war. (Exclusive interview with Channels Television, October 11, 2016).
Also noteworthy are the arguments of Barrister Femi Falana, SAN. He reminded that judges that had committed grave criminal offences were simply retired and never prosecuted. He mentioned the case of two Senior Advocates of Nigeria standing trial in the Lagos High Court allegedly for bribing a judge who has not been charged to court. He also recalled that ‘about two years ago, an anti-graft agency found N2 billion in the account of a High Court judge. As soon as the judge was invited for questioning she reported, made a statement and was granted bail. But as she could not defend the lodgement in her bank account, she obtained an interlocutory injunction from one of the judges in the custody of the SSS.’
In the same vein, ‘when both the Independent Corrupt Practices and other Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) sent invitation letters to judges suspected of corruption they (judges) rushed to the Federal High Court to obtain interlocutory injunctions to prevent their arrest, investigation and prosecution.’ (The Nation, October 10, p.6).
The essence of the foregoing is to underscore three points: those who are required to nip corruption in the bud are precisely the first catalytic operatives of corruption who ‘unrule’ or bastardise the law. Secondly, the rule of law cannot but be misplaced in the face of judges’ interlocutory injunctions, if the anti-corruption war is to be taken seriously. Thirdly, the controversial debate and the DSS arrest raise the challenge of purpose and method, which has serious implications for Nigeria’s foreign policy. Our intention here is to examine how the issues involved affect foreign policy.
The Foreign Policy Dimensions
First, on Monday, 10th October, judicial activities were grounded at the Federal High Court, Abuja even though some cases had already been listed to be prosecuted (DailySun, October, 11, p.6). As reported by Godwin Tsa, ‘sources said it was to show solidarity to their brother justices now in detention.’ In whichever way the arrest of any judge may be taken, why should some judges create situations of inconvenience for others? How do foreign countries look at the attitudinal disposition to the dispensation of justice in Nigeria? Is solidarity or adjournment of cases in consonance with the rule of law? If it is, how is this helpful to the containment of corruption? How do potential investors view this development? Can there be any iota of respect for the judiciary in Nigeria?
Secondly, there is the issue of immunity from arrest and prosecution which is believed to be applicable to the President, the governors, and their deputies. Let us assume that the immunity clause even applies to the judges, does it, or should it, cover acts of indiscipline and corruption? This question is important: the principle of immunity in both international relations and international law only covers acts embarked upon in official capacity. In the second case, in what capacity have the judges acted, official, officious, or unofficial? If it is neither official nor officious, why should the immunity clause apply in order to delay prosecution or protect corrupt practices, when it is generally considered that corruption is the bane of the Nigerian society? Should there even be any need for immunity if political governance has been predicated on honesty and objectivity of purpose?
Again, the world can see the judges as guilty, even if they have not been so pronounced for some reasons: why should a judge keep millions of dollars and other foreign currencies at home if such monies have a legitimate background? How do foreigners see the use of interlocutory injunctions by the Bar and the Bench to pervert justice? If Nigerian judiciary is visibly corrupt why should the same Nigerians complain if their foreign friends do the same? Nigeria is internationally seen as a land where anything goes or is possible. Can the arrest of the judges by the DSS be considered a threat to democracy or be interpreted to suggest that PMB is not democratic? Is the arrest not a reflection of anything goes in Nigeria? These are some of the questions Nigerian diplomats have to begin to deal with.
Thirdly, the DSS arrest necessarily makes Nigeria’s foreign policy challenges more complex. For instance, Nigeria’s relations with the Arab world has an underlying hostility which no one wants to talk about, and that is the little regard for Nigeria, possible Islamisation of Nigeria and use of Nigeria as an instrument of Arab foreign policy.
For instance, in December 2015, Iran queried in an unbefitting manner the Government of Nigeria following the blockade of the passage of the then Chief of Defence Staff by some pro-Iranian Muslim fundamentalists in Nigeria. It was through Nigeria that the same Iran also engaged in illegal arms trafficking to The Gambia.
In 2015, Morocco also consciously embarrassed the President of Nigeria when his scheduled visit to that country was considered non-grata. About two months ago, Turkey not only instructed Nigeria to close down Turkish schools in Nigeria but also detained Nigerians attending the Gulenist-affiliated institutions in Turkey. Even though Turkish Ambassador to Nigeria, Mr. Hakan Cakil, has tried to deny the allegation, saying that those detained were only four people and were detained for immigration offences only, the Punch Editorial of last October 10 has raised the issue of deportation and prohibitive re-entry conditions placed on the issuance of new visas. Raqqaya Usman ‘was detained, humiliated and deported at the airport on her return from holidays, and ‘she is in her final year of studies at Istanbul’s Fatih University.’
Government’s reaction to the foregoing act of disrespect is, at best, lukewarm and yet diplomats are required to always seek to defend the actions of Government in their host countries. Now it is the issue of the judiciary, an independent arm of government in any democratic setting. What type of defence can any good diplomat put up to defend the government outside of the country in this type of situation?
A fourth issue is that of conflict of law or inadequacy of law or jurisprudential contradictions. The DSS claims it has a warrant of search and arrest. Some lawyers argued that the DSS does not have the competence it is laying claim to. Some argue that even if there has to be an arrest, the Constitution still requires a humane treatment. If we take a look at the case of the judge in Port Harcourt who resisted arrest with the assistance of Governor Wike, is the resistance by a law officer lawful? When there is resistance to lawful arrest, and there has to be use of force, where do we place humane treatment? How does the international community see the custodians of the law being the accused? What type of arguments will the Nigerian diplomats present to their colleagues when cracking jokes about Nigeria being ‘fantastically corrupt’?
Fifthly, and perhaps most importantly, the whole of Africa used to look up to the judiciary in Nigeria for leadership and assistance. Many Nigerian judges have headed the judicial services in many countries of Africa. With the current taint on the integrity of some judges in Nigeria, what can we say will be the perception of Nigerian judges outside of the country? Can they be readily nominated for international appointments in the foreseeable future?
Finally, in the making of a new Nigeria, it must be admitted unconditionally that, unless the tap roots of corruption are completely removed, Nigeria’s lifeline cannot but be under a permanent destabilising threat. Additionally, the difficulty in nipping corruption in the bud is largely due to the many loopholes in the law. The judicial officers know all the twists and turns of the law and have simply been taking advantage of their knowledge of it in engaging in corrupt practices.
Consequently, it is not by arguments of legality or illegality of method or means that can resolve the problem of corruption in Nigeria. If the DSS is wrong in its method of arrest, the judges cannot be right for consciously abusing the law and public trust reposed on them. Application of rule of law does not always mean the use of pacific approach. It is the extent of strategic importance of an objective that should determine the choice in a difficult situation as it is in Nigeria of today.