More on the "Empty Treasury Syndrome"

As it happens concern about the looting of state treasuries continues with governor Sule Lamido of Jigawa state highlighting the fact that, according to him, most loans obtained by state governments from private Nigerian banks are fraudulent. The full story can be seen in today's This Day newspaper.

The governor also claimed that the fraud is perpetrated with the connivance of some of the banks and put forward two suggestions which, like suggestions in the last blog entry below, are directed at prevention in the first place and which are considered as also being generally supportable.

The first suggestion is that loans by private banks to state governments should be regulated (we add, subject to oversight) by the Central Bank of Nigeria and other appropriate financial institutions and authorities. The second suggestion is that the current constitutional immunity from prosecution enjoyed by governors while in office should be removed so that they are open to and face the threat of prosecution particularly, we add, for fraud/corruption while still in office. The governor's final suggestion is in terms of a challenge to two of the country's main anti-corruption bodies, the EFCC and the ICPC, to investigate the declaration of assets of governors when they assume office compared to their assets when they leave office. Indeed, declaration of assets upon assumption of office is a constitutional requirement and it is indeed a good idea in the fight against corruption to pursue outgoing governors for adequate explanations of gross favourable discrepancies in wealth between the times of their assuming and leaving office. In fairness, the EFCC is currently pursuing a similar course but arguably this needs a clearer statutory basis and stronger practical bite.

Tackling the "Empty Treasury" Syndrome

In an interesting editorial in today's Guardian (Nigeria), Reuben Abati highlights the deplorable circumstance, reflected in outcries by a number of incoming governors, that the outgoing administration in many states left an "empty treasury". Whilst it is not unknown for governments to run on deficit (e.g. the well known case of the US), what makes the circumstances described particularly insidious is that the reason that the accounts of the particular Nigerian administrations are said to be in such tatters is as a result of alleged looting and grand corruption said to be going as high as the outgoing governor. Indeed an unhealthily sizable number of governors who left office following the recent elections in Nigeria are, in one sense, currently helping the Nigerian anti-fraud "watch-dog", the EFCC, with enquiries.

As is well known, the last federal administration embarked on a high-profile ostensible anti-corruption drive with the establishment of a number of bodies, including the EFCC, with responsibilities for tackling corruption. However, one shortcoming with the anti-corruption strategy and others over the years is that the emphasis has typically been on prosecuting offenders and, more usefully, recovering some of their loot. What has been lacking, or at least not so evident, is the adoption of measures designed in the first place to prevent as much as possible, or at least to reduce the opportunities for, the looting of public funds by public officials abusing their powers and the authority of their office.

Without by any means attempting to provide an exhaustive solution to the problem of corruption, it is possible to float a couple of practical and "proactive" measures that might help to pre-empt official corruption for further exploration and consideration.

1. "The Whistle-blower Doctrine"

In the particular circumstances of Nigeria, it will be helpful to have a framework whereby persons, particularly those working in sensitive positions such as the Treasury, Finance Ministries etc, with information of corruption or potential corruption can safely, confidentially and with guaranteed anonymity report such event. Even granted that many people in such positions may themselves be compromised, the framework should be put in place for those among their rank who still have a sense of duty and conscience or who develop a change of heart to feel safe to do what is right.

Typically, fear of reprisals by an "all powerful" executive or superior is a discouraging factor for a potential "whistle-blower" and, as such, there is a more general and wider need to tackle general "ultra vires" (actions beyond official powers) and, worse, abuse of powers. Of course, there are constitutionally or statutorily defined limits to official powers and there are the typical constitutional/administrative law remedies. However, these take long to pursue if at all there is any political will to pursue them. In the meantime, a safe and anonymous reporting system is likely to at least provide a practical encouragement to someone that may be minded to expose official corruption.


2. "The Audit Principle"

Consideration might be given to a statutory requirement of two layers of independent/external auditing of the accounts of the relevant levels of government (especially local and state) and some state organs. In the first place the monthly internally audited accounts of these organs and levels of government would be submitted to an external body like the EFCC, adequately resourced and competently staffed, to provide a basis for ongoing and independent monitoring of state funds and the uses to which they are put. Secondly, a scheme of at least annual independent external audit akin to that which applies to private sector companies might be put in place, granted with possible caveats and protection of official secret. Indeed, the scheme might have some flexibility built in to allow for such an event to occur biannually or even quarterly where appropriate.


3. "The Basic Public Transparency Principle"

This is a suggestion that a basic monthly account of each tier of government setting out at the minimum the ratio of total expenditure to total revenue for the particular month should be made publicly available under a statutory duty. This should also include an outline of the projects and items that the expenditure involved.


These are just basic outline ideas that no doubt have weaknesses. The essential point, however, is that while apprehending and prosecution corrupt officials is commendable, the fight against official corruption will be that much strengthened if at least equal devotion is given to measures that may potentially prevent or reduce of fraud and corruption in the first place.

Governor Obi of Anambra's Reinstatement by the Supreme Court

First, apologies for inactivity of blog --- too much going on elsewhere etc. --- then a short essay on the recent development concerning the governorship of Anambra state.

It is a very interesting time in Nigeria currently as far as constitutional interpretation goes. In an important judgment with serious practical, political and legal ramifications, the Nigerian Supreme Court has ruled that under section 180 of the Nigerian Constitution, a governor's tenure of four years commences from the date that the governor took the oath of office and expires four years from that date.

On the face of it, this is a routine judgment giving a clear interpretation of straightforward constitutional provisions. The background to the case however reveals that the situation is not at all entirely straightforward. In brief, Mr. Peter Obi contested elections run in Anambra in 2003. The electoral authority declared that election to have been won by another candidate in the person of Dr. Chris Ngige. Accordingly, Dr. Ngige was sworn in as governor in 2003 under a term to run for four years thus ending in 2007. However, Mr. Obi challenged Dr. Ngige's "victory" in the courts with ultimate success in 2006 when it was finally held that the election of 2003 had in fact been won by Obi and Nigige was ordered to vacate the office for Obi. Following his success in the courts Obi was sworn in as governor of Anambra (he took "the oath of allegiance and oath of office") on March 17, 2006.

For clarity, the governorship election for Anambra state contested by Peter Obi in 2003 was part of governorship elections contested nationwide for each of the 36 states of Nigeria. The expectation was that the term of office of each state governor elected in 2003 was to end in 2007 when fresh governorship elections would once again be held for all 36 states in accordance with the Constitution. In other words the expectation, in ordinary circumstances, is that all the governors will be elected in the same year and their term to run and end at about the same time four years later. Thus, while Peter Obi’s case was yet to be decided by the Supreme Court, governorship elections were held in 2007, reflecting the normally expected end of the terms of the governors elected in 2003, and one “Dr.” Andy Uba was declared to be the winner of the governorship election in Anambra.

The major issue of general political principle in Peter Obi's case was thus whether he should be regarded as completing a four year term that had commenced in 2003 or whether he should be regarded as having only commenced a four year term from the date "he took the oath of allegiance and oath of office" i.e. from March 17, 2006, in which case both he and Andy Uba could not be governor at the same time. As an issue of general principle and observation, to conclude that Obi's term started from March 17, 2006 would automatically place Anambra state out of political step with the other 35 states of Nigeria, in that governorship elections in Anambra state could only be held 3 years after the latest governorship elections in the other states.

However, the Supreme Court's primary purpose of course is to interprete the law and the primary provisions that the Supreme Court had to interprete were the provisions of section 180(1)&(2) of the Constitution. These provisions are reproduced below:

180. (1) subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until -

(a) When his successor in office takes the oath of that office; or

(b) he dies whilst holding such office; or

(c) the date when his resignation from office takes effect; or

(d) he otherwise ceases to hold office in accordance with the provisions of this constitution.

(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when -

(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and

(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

The principal focus of the judgment of the Supreme Court is s. 180(2) which provides that the governor shall vacate his office at the expiration of four years from the date he took the oaths of allegiance and of office. On an obvious literal interpretation of this provision, the court took the view that as Peter Obi was sworn in as governor of Anambra state on March 17, 2006 his term of office does not end until March 17, 2010 (sic). It is to be borne in mind, however, that s.180(2) is expressly declared subject to section 180(1).

The parts of s.180(1) that have a specific bearing on the present case are paragraphs (a) and (d) which provide that a person shall hold the office of Governor of a State until when his successor in office takes the oath of that office or he otherwise ceases to hold office in accordance with the provisions of this constitution. As far as s.180(1)(d) is concerned, there is obviously no question of inconsistency with s.180(2) in that s.180(1)(d) lays down the foundation on which s.180(2) could operate. With s.180(1)(a), there is need for a deeper consideration in establishing consistency between it and section 180(2).

As s.180(2) is expressly declared subject to section 180(1), it is submitted that the provision that determines the maximum length of time that a person can hold the office of governor for one term is s.180(1)(a) of the Constitution. Specifically, that maximum length of time is “until when his successor in office takes the oath of that office”. Thus, even though s.180(2) provides that a governor shall vacate office four years after the date he was sworn in, the governor may nevertheless remain in office beyond that date, in accordance with s.180(1)(a), if the date of swearing in of his successor is later than that date. In other words, a person may remain in office as governor beyond four years after his swearing in until his successor is sworn in. It is also worthwhile to point out that despite the provisions of s.180(2) allowing a governor a term of four years from the date of his swearing in, such term is not absolute as, apart from death, a governor may serve less than four years as a result of resignation or impeachment for example.

It is understood that the Supreme Court will give full reasons for its decision on 13^th July 2007. It is to be hoped that in providing the full explanation, the court will expatiate upon the relationship, in particular, between, s.180(1)(a) and s. 180(2)(a) of the Constitution and provide clarification once and for all. Specifically, there is a concern that s.180(2)(a) might have been given greater importance than section 180(1)(a) to which the former is subject. In other words, it is submitted that the proper approach is firstly to establish whether a successor to the incumbent/outgoing governor had taken the oath of office irrespective of whether four years had expired from when the incumbent/outgoing governor himself took the oath. The converse approach, which is believed to be inaccurate, is to say that as four years had not expired from when an incumbent/outgoing governor was sworn in, there could not be a successor.

In making the above observation, it is not suggested that the final outcome of the Supreme Court would automatically be different if the first approach was followed in that what the Supreme Court has said is slightly but significantly different. What the Supreme Court has said is that an election should not have been conducted “into an office that could not be said to be vacant.” This runs dangerously close to being read, unless qualified in the expected full explanation, as saying that as long as an incumbent’s tenure is still subsisting, there cannot be a valid election to the office. It follows obviously that in the absence of a legally valid election, there cannot be an elected successor to the incumbent. On the other hand, however, elections are generally held for the succession while the incumbent is indeed still lawfully in office prior to a subsequent date of handover upon the swearing in of the successor. It is therefore suggested that it is desirable for the Supreme Court to provide further cogent and detailed reasons as to why the Anambra governorship elections held in 2007 are not valid as a prelude to a holding that its application of s.180(2) as determinative of this case has not caused prejudice to the primacy of s.180(1).

As a postscript, it is worth noting that the fact that this matter has been pursued solely through the judicial process is a reflection of some of the positives in the Nigerian system despite the gaping shortcomings of current civilian/democratic rule.

The Intro

Lex Nigeriana - on Nigerian law, policy, politics, miscellany and oddities.