Just over a year ago, Nigerian President Muhammadu Buhari took office. He had run on a platform of anticorruption and military reform and, while I wanted to be hopeful, I expressed measured skepticism that he would be able to make substantial headway on either issue. For all he has received his fair share of criticism over the past year, President Buhari has made considerable efforts to tackle corruption, including graft in the military. In addition to advancing somewhat controversial legal reforms aimed at whistleblower protection and anti-money laundering, among other things, the Buhari administration has stepped up prosecution of high-level officials for corruption-related crimes.
The most prominent case is that of Colonel Mohammed Sambo Dasuki, who served as former President Goodluck Jonathan’s National Security Adviser from 2012 to 2015. Following an investigation into arms procurement under the Jonathan administration, authorities arrested Dasuki in late 2015 and indicted him on numerous counts of fraud and money laundering. The initial investigation by the Economic and Financial Crimes Commission (EFCC), one of Nigeria’s anticorruption units, uncovered evidence that Dasuki had orchestrated a fraudulent $2 billion arms deal and had engaged in other criminally corrupt activity. The charging documents accuse Dasuki of funneling state funds to politicians of the former ruling party, real estate developers, consultants, and religious leaders. The money had been intended to purchase helicopters and military planes for the fight against Boko Haram, the terrorist group responsible for the death of thousands and the displacement of millions in northern Nigeria. The purported criminal conduct involved high-profile co-conspirators, including former Minister of Finance Bashir Yuguda and former governor of Sokoto State Attahiru Dalhatu Bafarawa. If the alleged facts are true, Dasuki and his accomplices are guilty of heinous crimes.
Given the severity – and plausibility – of the purported misconduct, I was not shocked to see that the case had reached the ECOWAS Court of Justice – a regional body with jurisdiction over human rights abuses committed by Member States. I was shocked to see that Dasuki was the complainant, and that the Court of Justice had issued a preliminary ruling in his favor. Upon taking a step back, though, I realized that the Court of Justice ruling is not outrageous; in fact, it has sent a critically important message to the Nigerian government that respecting the rule of law is just as important as convicting corrupt officials.
In the period following Dasuki’s arrest, there has been scant opportunity to consider the facts of his case. It has been mired in complicated procedural developments that have generated controversy of their own. The case’s complexity is due to the fact that it is actually three separate lawsuits proceeding before three different judges. By late December, all three courts had granted Dasuki bail, subject to certain conditions (see here, here, and here) – namely, Dasuki was required to pay $1.25 million and provide a surety to two courts, to surrender his passport, and to notify the courts of any travel outside of Abuja. Dasuki soon posted bail and met the requisite conditions. Immediately upon his release, however, the State Security Services (SSS), Nigeria’s domestic intelligence agency, re-arrested Dasuki without specifying additional charges. Since then, Dasuki has mounted a series of legal challenges to his detention. The defense seeks to stay the prosecution and dismiss all charges, arguing that the government is in contempt of court for refusing the bail orders. The prosecutor, representing the EFCC, argues that the bail orders pertained to the EFCC and that nothing prevents another branch of the government from detaining Dasuki. Earlier this year, all three courts sided with the government (see here and here), allowing the trials to proceed.
Enter the ECOWAS Court of Justice. Meeting with little success in national courts, Dasuki filed a complaint before the regional court. He seeks an order for his immediate release and damages in the amount of $2.5 million. Citing the Nigerian constitution and the African Charter on Human and Peoples’ Rights, Dasuki claims that his latest arrest and continued detention violate his liberty and property interests. The Nigerian government countered that the Court of Justice lacks the authority to hear the case because it arises out of ongoing domestic criminal trials. On April 11, the Court of Justice ruled that it had jurisdiction – a win for Dasuki. The court held hearings on May 19, during which the government contended that Dasuki’s detention is justified by concern for his personal security and substantiated fears that he will flee the country if released. The Court of Justice is supposed to release a decision by the end of this month.
At first glance, the involvement of the ECOWAS court seems objectionable for several reasons. It appears odd and potentially unjust that, of all the human rights cases coming out of ECOWAS, the court took this one. It is also highly unlikely that the Court of Justice is entirely disinterested – Justice Friday Chijoke Nwoke, who delivered the court’s opinion, is Nigerian and the court is based in Abuja. Furthermore, intervention seems, in part, like a premature invasion of sovereignty given that Dasuki is currently litigating before domestic courts (again, the court considered and rejected this argument).
But scrutiny by the Court of Justice is a good thing in the long run. It draws attention to the importance of due process and the rule of law, and to lapses in the Nigerian government’s adherence to those procedures. The Dasuki cases could represent a huge victory in Nigeria’s fight against graft. Given the stature of the defendants and the fact that they are members of the opposition party, it is particularly crucial that the outcome be credible. The Nigerian government faces tremendous pressure to secure a conviction in this case, but that conviction will only have a lasting impact if it is the result of a proper process. As Clement Nwankwo, a Nigerian human rights lawyer commenting on the Court of Justice ruling, stated, “the government needs to take the judicial process more seriously. When it fails to do so, it discredits any trial that it conducts.” This opinion echoes one that has been expressed on this blog: if the focus of anticorruption efforts is on conviction at the expense of due process, judicial institutions will be undermined instead of strengthened. The problem is not unique to Nigeria – I’ve discussed it in the context of Romania and it is likely to be present in any institutionally weak country with leaders committed to aggressively combating corruption. Thus, given the laudable trajectory toward increased enforcement around the world, it is especially important to ensure that convictions are just.
You are absolutely correct Elizabeth that the outcome is as good as the process. It would be retrogressive for the country to get lots of anticorruption convictions through a process that violates human rights and disrespects the rule of law. This is actually typical of the Buhari regime in 1983 to 1985 where he imprisoned over 500 politicians on various allegations of corruption through military trials that were fraught with lack of due process. It is important that a government works to build institutions to help in the fight against corruption. I think the case at the ECOWAS Court is more like an attempt by Dasuki to try sub-regional courts since the government has failed to respect and comply with the decisions of Nigerian courts. However, I consider this another effort in futility because there are decisions of the ECOWAS Court that the Nigerian government has refused to comply with as well such as the UBEC decision. It may only end up at best to draw more international attention to the case and possibly international condemnation of the government.