BARU, NNPC AND THE WAITING GAME By Emmanuel Onwubiko

The usually boisterous and convivial atmosphere of the green chamber of the National Assembly has never witnessed the kind of laughter and banters by senators like the way it happened when the senator representing Kaduna central applied his power of oratory to dramatize the trend of anti-graft crusade of the current federal government.

Shehu Sani, a well-known loyal supporter of president Muhammadu Buhari and one of the very few members of the ruling All Progressives Congress who speaks truth to power said the presidency applies insecticides when fighting perceived corruption amongst political opponents but uses deodorants when members of the ruling party are implicated in corrupt practices.

The senator was reacting to the apparent slow pace of action by president Buhari in dealing with the alleged corrupt practices in which one of the most trusted friends of the president and the secretary to the government of the Federation Pastor Babachir Lawal was involved.

The embattled top politician was implicated in the alleged diversion of huge sums running into hundreds of millions of Naira from the relief fund set up for the rehabilitation of the North East destroyed by Boko haram terrorists.

Incidentally, Babachir Lawal was not alone in this book of infamy because the Director General of the National Intelligence Agency was also indicted following the discovery of nearly $50 million USD in a flat in Ikoyi in Lagos which the spy master sensationally owned up to as belonging to the agency.

President Buhari apart from not directing the relevant anti-graft bodies to wade into the matter resorted to the use of subterfuge and diversionary method by setting up a presidential panel headed by his Vice to look into the spectacular allegations against the duo.

To the shock of critics, the Vice president alongside the Director General of the Directorate of state services and the National Security Adviser professionally investigated these allegations and reportedly made far reaching recommendations but the president has sat on this file.

For me, the setting up of a panel outside of the already existing anti-corruption institutions amounted to an attempt at rubbishing the relevance, powers and functions of these institutions and has in a very serious way undermined the credibility of these agencies.

The deliberate delay tactics being adopted by the president before handing over his chief scribe to the relevant anti-graft bodies for prosecution has in no small way damaged the much talked about mantra of change which this government has made the hallmark of its modus operandi and modus vivendi (mode of operation and mode of speaking).

I say this because democracy becomes stronger or weaker depending on how the relevant institutions are strengthened or weakened.

These tendencies by the current government as well as most other central governments in the past in applying double standards on matters of enforcement of the law on alleged offenders belonging to their ruling class seems to have proved right the claim by some scholars who had raised doubts regarding the capacity of a country like Nigeria with diversity of ethnicities and cultures to build stable democratic institutions.

The scholars said as follows: "The potentially most damaging challenge to the idea of consociational engineering is that the lessons drawn from Western consociational experiences are not applicable to non-Western plural societies because there is literally a world of difference between the plural societies in the First and Third Worlds."

They argued also that: "According to this objection, the differences between the segments of non-Western plural societies are generally so much greater than those in the Western plural societies that the chances of bridging them by consociational methods are nil or infinitesimally small." 

One obvious answer, they say, is to point to the example of consociationalism in Malaysia with its extremely deep racial, cultural, and economic cleavages among the population segments but it will also be instructive to examine in some detail the arguments presented by the principal critics.

"The most extreme view is that of Alvin Rabushka and Kenneth A. Shepsle. They maintain that stable democracy in plural societies is inherently impossible and claim that scholars who think otherwise are led astray by their democratic commitments"

Also the scholars in this school of thought believe that: "many scholars display a bias for democratic political arrangements (which) has led, we think, to some wishful and as yet unsuccessful attempts to demonstrate that stable democracy can be maintained in the face of cultural diversity”. 

But a political researcher pointed out some fundamental missteps in this trend of thoughts. 

Hear him: “The world of ethnic communities is Hobbesian and often implies ‘a war of all against all’.” In particular, the argue that a grand coalition is unworkable because it is “inherently oversized” according to the criterion of Riker’s size principle, which states that under zero-sum conditions a coalition with a bare majority will be formed. The zero-sum assumption is not realistic, however, except in the most extreme case of a plural society. If there is at least either some common loyalty or a rational perception that politics is not one “game” but a continuing series of games so that part of the payoff is the advantage of peaceful relationships in the long run, the zero-sum assumption becomes invalid – and so does the hypothesis that grand coalitions cannot operate successfully", (see the book titled: 'Democracy in Plural Societies, a Comparative Exploration' by Arend Lijphart).

Be that as it may, this writer believes that a constitutional democracy like we have in Nigeria which is patterned after such successful democracies like the United States of America and the United Kingdom, should have the inherent capacity to become stable by building upon strong institutional frameworks for equitable applications of relevant laws.

In that sense, president Buhari is expected to act decisively in the crusade against corruption and must use a common yardstick in the prosecution of all offenders before the competent judicial and prosecutorial institutions.

What does the constitution say about corruption? In section 15 (5), the constitution makes it imperative that the fundamental duty of the nation state is the abolition of corruption and abuse of office.

This therefore brings us to the trending case of alleged misconducts made against the management team of the state owned petroleum behemoth – Nigerian National Petroleum Corporation – headed by Alhaji Maikanti Baru.

In a letter to President Muhammadu Buhari, the minister of state, petroleum Resources, Dr. Ibe Kachikwu, accused the GMD, Dr. Maikanti Baru of insubordination and lack of adherence to due process.

In a letter dated August 30th, 2017, HMS/MPR/001/VOL.1/100, the minister accused the GMD of running a one man show at the corporation.

"Mr. President in over one year of Dr. Baru’s tenure, no contract has been run through the NNPC board, Kachikwu alleged in copies of the letter.

 "The legal and procedural requirement is that all contracts above $20m would need to be reviewed and approved by the board of NNPC.”

“This is despite my diplomatic encouragement to Dr. Baru to do so to avoid wrongfully painting you as a President who does not allow due process to thrive in NNPC.” “Given the history of malpractices and the public perception of NNPC as having a history of non-transparency, the NNPC tenders board, NTB, cannot be the final clearance authority for contracts it enters into.”

 The minister then proceeded to reel out major contracts amounted to the Princely sum of $26 billion which Mr. Baru awarded without recourse to due process of the law.

These allegations are extensively damaging. Nigerians from different walks of life have begun challenging Mr. President to be decisive and act promptly.

What then should president do so as to clean up the augean stable? 

Let the president follow the due process of the law and let the relevant institutions set up by law to investigate these weighty allegations and the lead character in the whole drama being the Group Managing Director should be excused so he does not interfere with thoroughbred investigations.

The Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and allied offences Commission (ICPC) should institute separate investigations and take up their statutory functions of getting to the roots of these serious allegations. 

The process must be thorough, transparent, open and accountable and the heads of these investigative bodies must be patriotic and professional in their approaches.

The president since coming to office has paid a lot of attention to the methods the immediate past administration applied in running the petroleum sector which is notorious for being the cesspool of corruption. 

Those allegations against Baru have demonstrated that there may indeed be a clear pattern of deep seated corruption in the NNPC which must be destroyed.

The name of the president is at stake here given that he made himself the senior minister of petroleum since assuming office.

The laws are clear on what to do with misapplication of public fund or outright theft.

In his book, a former police chief said that a serious offence with which a person may be charged with is the offence of stealing.

Section 390 of the Criminal Code creates the offence of ‘stealing’, which is not the same as the old offence of larceny in English Law. 

Even in English Law, the offence of larceny has been replaced by the new offences of theft which is contained in the Theft Act 1968.

Section 383(1) of the Criminal Code defines ‘stealing’ in the following terms, viz: That a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing”.

“Section 383(2) provides, inter alia, that a person who takes or converts anything capable of being stolen is deemed to do so fraudulently, if he does so with the intent to permanently deprive the person who has special interest in the object. 

"Stealing basically means forming the dishonest intent to take away property without the owner’s consent".

As with most criminal offences, stealing requires an ‘actus-reus’ and ‘Mens-rea”.

“The ‘actus reus’ of stealing is the taking or conversion of the property that is, the physical asportation of the property. Taking of property under Section 383(1) means no more than the taking of something away from its normal position, if the prerequisite mental element is present. 

"The ‘taking’ needs not to be completely taken into his physical possession. He is deemed to have taken a thing if he moves it or causes it to move”, (see the book: 'The Legal Implications of the Mismanagement of Public Funds in Nigeria' by Mike M. Okiro & Basil M. C. Anasoh).

This then leads us to send a gentle reminder to Mr. President to activate the demands of his oath of office and pledge of allegiance to the Constitution of the Federal Republic of Nigeria and immediately order the investigation and prosecution of any one found wanting in this huge contract scam that has emerged. 

Dr Tunji Abayomi is a legal mind of uncommon denominator who has written a well-regarded authoritative book on the Constitutional powers and functions of the President of Nigeria. 

Incidentally, just like the current President, Dr. Tunji Abayomi who was a lawyer to ex-President Olusegun Obasanjo, belongs to the All Progressives Congress.  

"Under Sections 140(1) and 140(2), the President is required to take the Oath of Allegiance and the Oath of Office before he can begin to perform the functions of the office".

"The separation between the Oath of Allegiance and Oath of Office of the President is significant to the extent that the Oath of Office expands the responsibility to which the President commits himself when he bears true Allegiance to the Federal Republic of Nigeria, and when he undertakes to preserve, protect and defend the Constitution of the Federal Republic of Nigeria".

"By taking the Oath of Office, the President commits himself to specific goals of general nature to wit:

(i) bear allegiance to the Republic; (ii) faithfully discharge his duties in accordance with the constitution; (iii) strive to preserve the fundamental objectives and directive principles of state policy; (iv) avoid influence caused by personal interest; (v) abide by the code of conduct; (vi) treat all people equally under the law; and to (vii) protect the secrecy of information; to ensure the (viii) devotion to the service and well-being of Nigerians, ( see the book: "Constitutional Powers and Duties of the President" by Tunji Abayomi).

This writer took time to give these legal backgrounds so as to remind President Muhammadu Buhari what he constitutionally owes the Nigerian people in the fight against corruption. There must be no sacred cow and indeed there must be no time for another waiting game. 

*Emmanuel Onwubiko is head of the Human Rights Writers Association of Nigeria (HURIWA) and  blogs@ www.emmanuelonwubiko.com; www.huriwa@blogspot.com.