One foot in the door of restructuring

Governor Babajide Sanwo-Olu

Here is something very important that should make you perk up your ears. Last week, Babajide Sanwo-Olu, governor of Lagos state, signed a new state law titled Lagos State Public Complaints and Anti-Corruption Commission Law. Under the new law, which must have come as no small surprise to most of us, the state would take over the prosecution of all alleged corruption cases involving its former or serving public officers from the EFCC, ICPC and other federal agencies entrusted with waging the long-running and wobbly anti-graft battle whose smoke tends to blind their own operatives.

Three former governors of the state, Senator Bola Tinubu, Babatunde Fashola and Akinwunmi Ambode, as well as the speaker of the state house of assembly, Mudashiru Obasa, are being investigated by these bodies for alleged corruption. I wonder if that raises a flag of some sort, as in, smell the house rat.

I have not read the law. My comments here are based on the snippets extracted from it by Sunday Punch reporter, Eniola Akinkuotu, and published in the issue of the newspaper of April 25, 2021. With those snippets under my arm, I permitted myself to entertain the hope that the importance of the law lies in its possible capacity to extend the rights and the freedoms of the federating units of the federation to run their own affairs and be the legitimate minders of their treasuries and engage in the anti-graft war under circumstances dictated by their individual peculiarities.

Under the new law, the state would formally create its own anti-corruption agency to do for it what the other federal agencies are doing for the centre and the rest of the states. Two provisions of the law quoted by the newspaper make this quite clear: “Section 13(3). The commission shall upon the commencement of this law take over the investigation of all anti-corruption and financial crimes cases involving the finances and assets of Lagos State Government being investigated by any other agency.”

“Section 13(5). The commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.”

The new law is sure to kick off a heavy dust. Let us expect a dark dust haze hovering over the land for some time as soon as the federal authorities realise it is meant to keep their might and nose out of the affairs of the state. It will bring out a host of arguments, legal, emotional, et all, to the fore and, going by precedent, make it difficult for the reasonable and the informed to put in a wise word or two amidst the cacophony of views and voices.

Given the mindset of the federal authorities, the new law will certainly not go unchallenged by them and may end up as nothing more than a spirited but failed or suppressed attempt by the state government to chip away at the granite of the federal might. Those who subscribe to the argument that a federal law is superior to a state law, will dust off dog-eared legal documents to help the federal authorities press their point. The good thing is that if a state law clashes with a federal law, it is not invalidated by its inconsistency with the latter.

In making the new law, Lagos state government must have taken all or most of the possible arguments in opposition to it into consideration. Still, it would be a tough battle. If it loses, the frontiers of federalism would yield to the frontiers of a faux unitary system superimposed on a federal system. If it wins, it would be the first bold step taken by a state government towards the gradual dismantling of the stifling military federalism, a term coined by my good friend, Professor Isawa Elaigwu, to describe the remarkable anomaly of a federal system run like a military command structure that is neither fully a unitary system nor fully a federal system run in the tradition of best practices of the letter and the spirit of federalism. It is a unique system, I use the phrase loosely, that has hobbled our capacity to grow our federalism, our democracy and our constitutional government. Incendiary rhetoric has attended debates on this issue and all we have is a lot of motion absent of movement.

I need no babalawo to tell me that some cynics would give the law an interpretation wholly strange to it, to wit, that its intendment is to protect the four big men from the embarrassment of the anti-graft agencies hoisting them on the petard of their living two lives as honest men and alleged not quite honest men. I hope this cynical interpretation would not wash and the noble intendment of the law would be seen for what it is: a serious attempt at reshaping our federalism and constitutional government in line with our collective aspirations for a restructured federalism in which the states enjoy a measure of autonomy currently denied them by their big brother.

        Two important questions arise from the intendment of the new law. One, should the prosecution of the anti-graft war continue to be the exclusive right of the federal government as it is now? Two, can the states wage the war successfully in that if their former big men are found with palm oil on their fingers, they could, like the camel, easily walk through the eye of the needle? 

The anti-grant war, despite its glaring failures and contradictions, still hangs over the nation like the famous Sword of Damocles with the potential to decapitate leaders who cheat the people at all levels of government. Those who oppose the new law would easily use the same argument against state police, to wit, given their crying incapacity and the corruption inherent in the system, we would be killing the entire anti-graft war by allowing the states to create their own anti-graft agencies in a bid to be part of the process for cleaning up the system.

        When President Obasanjo created EFCC and the other anti-graft federal agencies he gave the centre the exclusive power to wage the war because it alone has the means and the capacity to do so. The federal might is a frightening might too. The new Lagos state law challenges that monopoly. I can understand the logic of that challenge on the grounds of one question: should everything be centralised in our system of federalism and constitutional government? 

I am opposed to excessive centralism, just as many others are who are pushing for restructuring to let in some air in our constitutional government. Like the one central policing system, a centralised anti-graft body has equally proved ineffective in a country of 881 governments, forcing EFCC that jumps into every case of alleged corruption to prosecute on the basis of investigation, not on evidence, but attended by the bells and whistles of public applause. It does so on the basis of petitions, most of which are spurious.

        Who, really, has the right to investigate a former state governor on allegations of graft while in office? It is an important question and one the EFCC Act does not care to address. A clue to a possible answer is that state budgets are appropriated by the state legislatures. Should the procedure for investigating the big man not begin with the state legislature raising questions on how the money it approved for the state budget was spent or mis-spent by the state governor? 

A former state governor was a servant of the state. If he corruptly enriched himself, he did so at the expense of the state and must be made accountable to the state through the state legislature, and not to the federal government or its agencies. I think the court of appeal used this logic to dismiss the alleged corruption charges against the former governor of Rivers state, Dr Peter Odili, and barred the commission from further investigating him.

        It seems to me there are procedural defects that undermine the anti-graft war itself. These defects, such as the relationship between the commission and the state governments/legislatures in alleged cases of corruption affecting their former or serving public officers would need to be cured so that the rights of the states to fully participate in the anti-graft war would be put in proper context rather than be seen as in opposition to the federal power to superintend the country. 

Let’s tarry a little and see how the new law fares in the court of public discourse. I give it my thumbs up.

UNI Agric Markurdi
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