Contradictory Positions of Government and Its Anti-Graft Agencies ...

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.been distributed to top Nigerian government officials by thecompanies subsidiary, Kellog, Brown and Root to facilitatethe award of contracts for the construction and expansion ofthe Nigerian Liquefied Natural Gas (NLNG) project in Bonny,Rivers State, valued at over $6 billion” (ThisDay,Monday, 6April 2009: 19). Yet another danger posed for the graftagenda is the apparent failure so far by “the Panel set up byFederal Government to probe the Halliburton multi milliondollar scam with the Inspector- General of Police (Mr. MikeOkiro) at the head to expose the culprits in eight weeks aspromised”(Sunday Punch, 12 April 2009: 24) irrespective ofthe President’s directive to “all relevant security agencies tothoroughly investigate the allegations in the bribe-forcontractsscandal (of which at least 3 former Nigerian leadershave been implicated) and take appropriate legal actionsagainst anybody implicated in corrupt practices” (Thepunch, Wednesday, 8 April 2009).In the light of this, one cannot but feel compelled toadd to the critique like other scholars who have raiseddoubts over the readiness of government to invite, extraditelet alone prosecute the suspects “in the Halliburton briberyscandal or the toothless probes of the activities of thepetroleum Technology Development Fund (PTDF) as it relatesto Mofas and Marine Float accounts, TIB, ETB, NDTV andDICON re-habilitation account; Siemens bribery scandal,Wilbros bribery scandal, as well as the high profile trial ofex-governors accused of corruptly enriching themselves”(The National Life, Saturday, 4 April 2009: 8) who are notonly strutting about our political landscape shameless butare the ones nominating people for cabinet jobs and waitingon the corridors of power to reap the benefit of thenominations instead of being subjected to theinconveniences of being charged to court. To many, theshoddy method adopted in not only removing the pioneerchairman of the Economic and Financial CrimesCommission (EFCC) Mallam Nuhu Ribadu, (and theappointment of Mrs. Farida Waziri in controversialcircumstances) from office, his sojourn to Kuru to make himmore effective, subsequent demotion and dismissal by thePolice Service Commission after committing 25 years ofdedicated service and retirement in tow with the restorationof his ranking as Assistant Inspector General of Police (AIG)”650

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)(This Day, Monday 6 April 2009: 20) has nevertheless shownenough clues of doubt as to government’s commitment tothe anti-graft war.Against the difficult background, in order to fullycapture all there is about the interplay of actors andprocesses, at the level of the government and anti-graftagencies, the role media as the fourth Estate of the realm,charged with the “exchange of opinions, news, and world -views intended to promote mutual information, so that allmay understand better not only what is happening but alsowhat the happenings mean” (Bernard Hanning cf. Ajakaye,1990: 7) has played in illuminating the dynamics of thegimmicks will be examined. In all this, my approach is acontent analysis of randomly selected print media(newspaper) items (articles, editorials, features of theHalliburton case so as to reflect “both in terms of reportedreality as well as in terms of the unreported factors andforces that determined reported reality” (Agbaje, 1992: 8).2. The Social Construction of ‘Selfish Interest’Over ‘Public Interest’ in GraftHow can the underlying thrust of the increasinglyravenous and devastating notion of graft globally and indeedNigeria be understood since ‘human actions are notreducible to any single theory of explanation” (Longdale,1981). As it were, I shall put forward the ‘self-interest model’(Genhard, 1968: 471) as an analytical framework because ittakes into account an individual’s non-commitment to moralprinciples, concern for others ‘we-feeling’ i.e the nonrecognition of the extent to which public standards andactions are dependent on their actions.How far back in the history of human evolution doesthis instinct reach? Well, Hobbes or with capitalist economicrelations and with several thinkers in the fourth and fifthcenturies B.C in Athens, whom Plato labeled loosely asSophists have attempted to establish that: human naturewas self interested and that though human beings cametogether in political association for the self-interested reasonof mutual defense; the laws of any polity, including Athens,were irreducible to self-interest” (italics mine).651

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.Equally, although most American political scientists,working largely within the confines of a pluralist theory ofpolitics, do not explicitly define ‘interests’, however, the logicof collective action that the second half of the twentiethcentury, game theorists, economists, and others agree on is‘how each individual’s narrow self-interest complicates orundermines the collective good’ (David, 1951: 56).Yet at another level, precisely in the 18 th and 19 thcentury writers like Hume or de Tocqueville, for example,argued, that individuals’ ‘ remote’ self-interest, or ‘selfinterest rightly understood was congruent with the commongood (Jane, 1990: xi.). But paradoxically, while economistsand psychologists acknowledge that common interests areeither a mystification or a waste of effort, most major Janefurther reiterates have realized that human beings had‘benevolent and malevolent’ as well as ‘self-interestedmotives’ which swing like a pendulum between “love andduty, hatred and factional feeling.Like Genhard (1968), I believe that within the Nigeriancontext, the long-run commitment to self-interest principle ismanifested in the transformation of the individual or politicalelite identity and loyalty to the state. This experience createsa political culture that emphasized the “ethnicizing ofpatronage and non-challant attitudes towards the state andits apparati, with the conviction that nothing was wrong withplundering the state’s treasury for the benefit of a communalrealm through the establishment of ‘welfare agencies’ thatprovide infrastructure and amenities (Eghosa, 1994:142).The recurring patterns of contradictions between thecleavage and sub-cleavage/primordial attitudes of theaverage Nigerian public official enmeshed in the use ofpatron-client (patrimony) relations to explain control overaccess to state resources- a continuity in practice from theBritish to independence successive governments hasremained a character in the Nigerian polity.Expectedly, these networks of patrons, clients, and theclients of clients have posed incessant pressures on the stateand the consequent intensive and persistent struggle tocontrol and exploit the “offices”. And given ‘man’s insatiableappetite for goods and services” (Genhard, 1968) it is nowonder that the beleaguered public officials who lacking instrong and viable base in production are prone to primitive652

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)accumulation through the various ways and forms of graftsuch as: “bribery, kickback, nepotism, favouritism,misappropriation of public funds, the exploitation ofprivileged relationship with key public sector managers forthe purpose of acquiring competitors business assets,extortion, patronage of different sorts, advanced fee fraud,inducement and gratification, kleptocracy and rent–seeking,etc (EFCC Act, 2002: LL. 9).With the way cases of graft are either stressed or playeddown few are likely to dispute the contention that there is a‘conspicuous pretentious gimmick’ by a subjectivegovernment which “seldom clashes with the interests ofpower- that- be (Ricketts, 1987: 10) to superimposefundamental over objective interests because of primordialinterests. This expectedly is at the expense of basic facilitieslike physical and social infra- structures as railways, roads,school, and hospitals needed to make life comfortable for thecitizens.In sum, the purpose of government as a summation ofthe will of the people presupposes therefore that the natureof the procedural rules should be in the interests of theNigerian people devoid of selfish interests especially with arecent study of the National Bureau of Statistics whichestimated “that about 70 million i.e two-thirds or half of theNigeria citizens live in poverty as a result of an endemiccorruption” (The Guardian, Friday, 20 October 2006: 13)3. The Halliburton Bribery Scandal and MediaReportage of the Contradictory Actions ofGovernmentIf the Chinese Proverb that “the fadest ink is betterthan the most retentive memory” is anything to go by, thenthe very straightforward way of examining the Halliburtonbribery scandal which violates the Corrupt Practices andOther Related Offences Act, 2000, and the MoneyLaundering (prohibition) Act of 2004 is through the printmedia reportage of it. This is because the heart of themedia’s information function lies in messages called news.One useful definition of news is that it is reports aboutthings that people want or need to know expectedly without653

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.taking sides (Vivian, 2003: 3). Thus, by distributingmessages or reports in various views which are burned intothe collective consciousness of citizens, offering a commonreference point that unifies resolve, the media can be abinding influence at many levels. So, if the whole issue ismuddled up or a less accurate reflection of the externalreality, the media view of the whole Halliburton scandalmakes it become the reality against which the reality iscompared. To identify whether a government is portraying itspolitical role as ‘honest broker” what follows, is anassortment of viewpoints about the Halliburton case in theprint media so as to give us the background to ask the rightquestions in this paper. However, it is pertinent that we bearin mind that the case “here presented is to open up newvistas, not to prove any particular preconceived point”(Henderson, 1987: 7).Let us consider the Halliburton-gate Bribery ScandalThe crux of the issues is that: In February 2009, Kellog,Brown and Boot (Halliburton) pleaded guilty to violating theForeign Corrupt Practices Act (FCPA) by paying Nigerianofficials at least $182 million bribes for EPC contract awardsbetween 1995 and 2004. This bribery scandal would havegone unnoticed, if Georges Krammer, former DirectorGeneral of the French company, Technip had not beenaccused of paying three million euros in illegal commissionsduring investigations into ELF-Aquitaine operations in Asiaand Africa contrary to his claim that the commissions werelegal and normal, as well as in conformity with thecompany’s policy. Expectedly, Technip managementdisputed his submission and subsequently charged him formisappropriating three million euros. Given thisdevelopment in a company he had worked for 35 years, wasfaced with no other choice than to spill the beans beforejudge d’ Instruction, Renaud Van Ruymbeke therebybringing to the fore how the Technip Commission paymentsystem worked in Indonesia, Thailand and Liquefied NaturalGas (LNG) project work in Nigeria. It is pertinent to know atthis point that the Nigeria Liquefied Natural Gas (NLNG)Limited was incorporated in 1989 with the Nigerian NationalPetroleum Corporation (NNPC) having the majority stake.However, in 1993, the administration of chief ErnestShonekan agreed to a reduction of Nigerian equity in the654

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)company, ceding 51 per cent of the foreign shareholders inthis order: Shell 25.6 per cent, TotalfinaELF 15 per cent andENI 10.4 per cent and the NNPC withholding the remaining49 per cent. This revelation inevitably upset the apple cartpaving way for the French investigations of Nigeria LNGproject as well as in other countries like Switzerland andUnited States. Siquel to the investigations, according tojustice department documents in the USA, KBR admittedthat at the crucial junctures before the award of thecontracts, KBR’s former CEO, Albert Jack Stanley who haspleaded guilty since September 2008 and has beenscheduled for sentencing in August and others had met withthree successive former holders of a top-level office in theexecutive branch of the Nigerian government to ask the officeholders to designate a representative with whom the jointventureshould negotiate bribes to Nigerian officials. Tworepresentatives were accordingly hired- a consultingcompany, Tri-star, which was paid $132 million is based inGribratar and a trading company based in Tokyo got $50million to be passed to Nigerian officials. Subsequently,Kellog, Brown and Boot (Halliburton) have agreed with thedepartment of justice to pay $402 million fine.KBR/Halliburton settled civil FCPA charges with securitiesand Exchange Commissions (SEC) agreeing to be jointlyliable to pay $177 million for disgorgement (Sunday Punch,19 April 2009: 12).In the wake of this scandal, the first move bygovernment was the declaration by the former minister ofjustice and Attorney-General, Mr Michael Aondaoka (SAN)that a law suit would be filed against indicted foreign giversof bribes for ‘soiling the countries reputation’ as well as see ifNigeria can get some compensation and redress (The punch,Wednesday, 8 April 2009). But when critics scoffed at theformer Attorney General’s haste to sue suspects who werebeing tried already while overlooking the prosecution ofNigerians who took the bribes and inevitably soiled Nigeria’simage, the Nigerian government ostensibly bowed tomedia/public pressure and outcry against any cover up. Thenext specific move was the inauguration of a committee offive security chiefs (members were-the chairperson EFCC,Mrs. Farida Waziri; the representatives of the directorsGeneral of the Nigeria Intelligence Agency NIA), State655

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.Security Service (SSS), and that of the National SecurityAdviser) on 21 April 2009, chaired by the former Inspector-General of Police, Mr Mike Okiro (has since been retired andreplaced by Chief Ogbonna Onovo), to investigate theinvolvement of Nigerians in the $180 million multi-milliondollar scam. The panel subsequently promised that it wouldcomplete the assignment and submit its report to the latepresident expectedly expose the culprits (apparently meaningthe names of Nigerian officials) involved in the briberyscheme in eight weeks (Sunday Punch, 12 April 2009: 24).And, typical of Nigerian commitees to date no name has beenprovided rather Nigerians have been saddled with excusesnay rather gimmicks by government would seek America’sassistance in order to facilitate nailing the culprits.And to achieve this the government through the officeof the former Attorney General purportedly claimed to havewritten a letter dated 17 February 2009 captioned Reviolationsof the Corrupt Practices and other Related Act2000 and Money Laundering Prohibition Act in connectionwith bribe payments relating to Bonny Liquefied Natural Gasfacility” specifically to persuade Mr Eric Holder on behalf ofthe United States to fast track US cooperation on theirassistance (to obtain some belated list of the names ofofficials involved in the Halliburton scandal bribery scandalunder obligation of the Mutual Legal Agreement Treaty(MLAT) signed in 2003 (Sunday Punch, 19 April 2009:12).The claim is that the evidence tendered in a UnitedStates court was under the seal. Consequent upon on this,he averred that there was need for the committee to workwith the security agencies abroad to unseal the evidencebefore it could be tendered in a Nigerian court. But on thecontrary, the print media accused the former AttorneyGeneral of deliberately stalling the probe for his allegedpersonal interest because reports have it that: though heactually visited the United States the trip ironically was notfor the stated reasons. Rather, media reports with US andNigerian government officials revealed that the visit wasactually pertaining to the Africa Growth and Opportunity Act(AGOA) and the Trade and Investment Protection Agreement(TIPA) up for renewal especially as the delegation includedthe minister of commerce and industry, Achike Udenwa, theMD of Bank of Industry and Nigerian Investment Promotion656

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)Commission). To however, counter the elaborate campaign ofpublic deception, the Attorney General hired not only DeboAdesina, a serving Guardian newspaper editor, Taju Kareem,a former staff of Guardian who served as his Media assistantbut other leading newspapers to launder his image in themedia claiming that the A.G came to the US to drop a “verbal note ” to the US state Department on the matter(Retrieved from www.Saharareporters.com ).Paradoxically, in their enthusiasm, sadly thegovernment paid no attention to the possibility that the pleafor assistance may yield no fruit because the U.S was notenthusiastic to assist the federal Government in prosecutingsuspects in the scam due to the country’s shoddyprosecution of its corruption war. In this context, it becomesapparent that one cannot refute the pessimism by formerminister of the Federal Capital Territory, Mallam Nasir el-Rufai that: First, the actions of late president Yar’Adua’sAttorney-General and Chief Law officer appears to portrayhis main job is to protect James Ibori and his ilk. It wouldbe recalled that the British invoked the provisions of atreaty, to admit evidence collected and submitted by the oldEFCC to proceed with the money laundering trial of JamesIbori and his wives, and he refused to give the go ahead.Second, despite the fact that the Germans gave thisadministration the list of those indicted in the Siemensbribery scandal, no one has been invited or extradited. Infactin 2007, 10 Nigerian officials among them four ministers incharge of the communication Ministry-Bello MohammedHaliru, Tajudeen Olarewaju, Cornelius Adebayo and the lateAliyu Haruna Elewi who were alleged to have between 2001and 2004 received bribes totaling $10 million from Germantelecoms giant Siemens (Retrieved fromwww.Saharareporters.com ).The interesting point of course, was that while thetelecoms firm (Siemens) and its officials have been indictedand punished (the chairman and its executive officers wererelieved of their jobs and at least two employees of thecompany were given suspended sentences for the briberyand breach of trust) by their home country, Germany, forconfessing to the bribe for contracts and scandals, in placeof the sanction, however, the federal government, which atthe heat of the bribery scandal two years ago suspended657

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.business dealings with the German firm has since reverseditself to consider Siemens for a new multi-million dollarelectricity contract (Retrieved fromwww.Saharareporters.com ).But while the government continued to be politicalwith its ‘darts,’ the anxiety by Nigerians who were anxious tosee the Federal Government own up to reality and unveil theidentity of off officials behind the Halliburton bribery scandaland bringing them to the book paradoxically came to ananti-climax following the press release by former specialAdviser to the President on Media and Communication, MrOlusegun Adeniyi (Sunday Punch, 19 April 2009:12) . I quotehere what Adeniyi said, illustrating how the interpretation ofthe coded names could not be used to identify the culpritsthat: records of the transactions need expert decoding andhigh level intelligence work to get out names of thoseinvolved. He added also, that as fascinating as the tales inthis file are, you do not find a single name of any Nigerianofficial mentioned there. Rather, what you find are codednames like contractor A, Consultant B, Madeira Company 1and so on and so forth. And even areas dealing with thesharing of loot, names are not mentioned, what you have arephrases like top officials of the executive branch. He alsoalluded to the fact that some of the sections which explainthe dilemma that led to the setting up of the Okiro Panel nowyielding results read thus: Stanley and his co-conspiratorsagreed that Joint Venture would hire Consulting Company Ato pay bribes to high-level Nigerian government officials,including top- level executive branch officials, andConsulting Company B to pay bribes to lower level Nigeriangovernment officials, including employees of NigerianLiquefied Natural Gas (NLNG) Ltd, in exchange for theofficials’ assistance in obtaining and retaining contracts tobuild the Bonny Island Project. Stanley and his coconspiratorscaused Madeira Company A and ConsultingCompany B providing for the payment of tens of millions ofdollars in consulting fees in exchange for vaguely describedmarketing and advisory services, when in fact a primarypurpose of the contract was to facilitate the payment ofbribes to Nigerian government officials. Prior to NLNG’saward to Joint Venture of the various EPC contracts, Stanleyand other co-conspirators met with three successive holders658

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)of a top-level office in the executive branch of theGovernment of Nigeria and negotiated with the office holders’representatives regarding the amount of the bribes that jointVenture would pay to the Nigerian government officials.Stanley and his co-conspirators caused wire transferstotaling approximately $132 million from Madeira Companyto 3’s bank account in Amsterdam, The Netherlands, to bankaccounts in New York, to be further credited to bankaccounts in Switzerland.”The gamut of excuses by the late president that hedoes not want to play politics with suspects but to follow theprocess and produce water-tight evidence against them aswell as the gimmick about coded names runs contrary to thesummation of a former investigator with the EFCC who notonly confirmed that “the names of Nigerian beneficiarieshave been known since 2006 but listed them as MrMohammed Dikko Yusuf, Funso Kupolokun and GaiusObaseki, both former top officials of the Nigerian Nationalpetroleum Corporation (NNPC), Edmund Daukoru ( a formerminister and close aide of Obasanjo’s), Timpre Sylva (currentgovernor of Bayelsa), Ibrahim Umar (who representedAbdusalam Abubakar), Dan Etete (a former minister),Ibrahim Abacha(son of the deceased dictator), Sena DonataAnthony, Tony Chukwueke and Atiku (though he has deniedhis involvement in the scandal) are conspicuously named inthe bribe scandal because Intels, a company owned by Atiku,had been a sub-contractor to Halliburton and had alreadybeen interrogated. The investigator reiterated that JeffreyTesler, who worked for a subsidiary of Halliburton, had toldAmerican investigators that he “made payments to Nigerianofficials, including two $75,000 transfers to M. D Yusuf,chairman of the company that awarded the original contractto the consortium and operated the natural gas complex. Hefurther said that Yusuf had provided assistance to theconsortium, including helping to arrange meetings betweenTSKJ officials and Abacha. But although Mr Yusuf hasadmitted receipt of the money, he however, said that themoney was a loan as Tessler was an “old business friend”hence had nothing to do with bribery.”On the other hand, the conspiratory muddying goingon, about the U.S assistance on account of MLAT came to acathartic end eventually when the US government in a 4659

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.June 2009 letter to the Attorney-General stated that it haddecided to “defer the execution of the request at this time”pleading article 111(3) which posits that, “if the CentralAuthority of the Requested State determines that executionof a requested would interfere with an ongoing criminalinvestigation or proceeding in that State, it may post poneexecution”(National Life, Saturday, 4 April 2009: 8) based onthe existing legal treaty between her and Nigeria. In otherwords, as long as the investigation continues, they willreview the matter to determine when the request may beexecuted without interfering in the United Statesinvestigation. While Nigerians wonder why it took U.S twomonths to respond with a “no show” to a request for legalassistance since April it is believed that the refusal by the USto cooperate with the Nigerian authorities, will significantlyaffect the F.G’s desire and promise to unveil top citizensbelieved to have been involved in the scandal. The AttorneyGeneral should have known better given his legendarydisdain for the Mutual Legal Agreement Treaty given that hehas warded off all efforts by the UK Crown ProsecutionService (CPS) to obtain relevant evidence to try associates offormer Delta State Governor James Ibori or his chummyrelations with Dan Etete, another former Nigerian officialindicted in the Halliburton scandal (The Sun Newspapers, 19April 2009). It has even been revealed that a letter written bythe Attorney General to the French authorities wasinstrumental in frustrating French prosecutors against MrEtete for money laundering during an appellate proceedingthough eventually, a French appellate court fined Mr Etete10 million Euros but set aside the prison sentence. However,since then the Attorney General has reported been usingseries of legal maneuvers that have reached advanced stagesin assisting Mr Etete in his bid to regain ownership of theillicitly acquired oil block OPL 245 which was revoked byformer President Obasanjo. All these reported examples aswell as Wilbros and Siemens scandals which have beenswept under the rug shows that the late Yar’ Adua’sadministration was not serious about fighting graft.And as if that knock is not enough the roller coaster ofcircus show seems not to be abating especially as thelawyers hired by Nigerian government are asking thegovernment not only “to protest to the Americans about its660

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)“deep disappointment” but to adopt more political anddiplomatic steps by seeking assistance from the AmericanCongress for assistance to end the impasse created by theU.S governments rejection” (The Guardian, Tuesday, 9 June2009:1).4. Analysing the Pretentions: Context, Issues andActorsThe elemental link between the role of the AttorneyGeneral of the Federation who also doubles as the Chief Lawofficer of the Federation and a Minister of the Government ofthe Federation and the fight against graft is specificallyacknowledged in Section 174(1)(c) (Sunday Punch, 19 April2009:12) which gave the Federal Attorney General amongother salient powers, the authority to institute andundertake criminal proceedings against any person beforeany court of law in Nigeria, other than a court martial, inrespect of any offence created by or under any Act of theNational Assembly. The Federal Attorney General also hasthe power to discontinue at any stage before judgement isdelivered any such criminal proceedings instituted orundertaken by him or any other authority or person. Thesame Constitution quickly added a proviso to guard againstthe abuse of these wide ranging powers when it stated that;“in exercising his powers under this section174, the AttorneyGeneral of the Federation shall have regard to public abuseof legal process”. The criterion presupposes that the duty ofthe Nigerian government to the citizens is evident in thenature of the procedural rules governing the conduct of theEconomic and Financial Crimes Commission (EFCC) 2002Act which concerns itself with issues about values, rights,duties/obligations and justice’ evident in Part 11 section 5-(1-j-i-6 (2) of the EFCC Act which stipulates the functions ofthe Commissions as (a) the enforcement and the dueadministration of the provisions of this Act; in consultationwith the Attorney-General of the Federation as stated in661

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.section (b) which bother on the investigation of all crimesincluding advance fee fraud, money laundering,counterfeiting, illegal charge transfers, fraudulentencashment of negotiable instruments, computer credit cardfraud, contract scam, etc and the about taking charge of ,supervising, controlling, co-coordinating all theresponsibilities, functions and activities relating to thecurrent investigation and prosecution of all offencesconnected with or relating to economic and financial crimes”(Economic and Financial Crimes commission Code of ConductBureau and Tribunal Act, (2002).The social and political responsibility of governanceexpectedly should be “characterized by the continuingresponsiveness of public policy to the freely expressed will ofthe people or the preferences of its citizens whereby allindividuals are to be treated as (political) equals” (JorgenElklit, 1994: 89; Dahl, 1971:1). The criterion of the politicalequality among citizens (even when it is not achieved globallyto a satisfactory degree) presupposes that the Nigeriangovernment should heed the warning of the former chiefjustice of Nigeria, Fatai Williams who in 1980 averred that “ifwe are to keep our democracy, there must be onecommandment, thou shall not ration justice” and ensurethat the indicted who ironically are political elites are dockedso as to justify the individual’s identity with, and loyalty tothe state. In effect, the Federal Attorney General as the chieflaw officer of a State is required by law to work for theenthronement of the rule of law and good governance byadvising the government on legal matters and representinglitigation.Expectedly, the EFCC Act designated as law, whichgenerally should touch most of our lives as well as serve inoversight functions of every activity of common interest isalmost perfect in its failure. For one, the Halliburton scandalbrought to the surface a long simmering suspicion that thereare “really serious problems’ with anti-graft agencies laws inthis country. On the second level, the office of the federalAttorney General initially courted controversy with the subtleattempt “to whittle down the powers of the Economic andFinancial crimes Commission on the supposed convictionthat section 174 of the 1999 constitution gives him powersas the Chief Law officer of the Federation to supervise all662

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)agencies that enjoy prosecutorial functions”(Sunday Punch,26 April 2009). This obviously unpopular decisionparadoxically got the directive by the late president that theanti-graft bodies should seek authority from the office of theFederal Attorney General and Minister of Justice until somuch hue and cry characterized it that it had to be reversed.The government having discovered that it has lost outin the so-called game plan to whittle down the powers of theEconomic and Financial Crimes Commission (EFCC) startedsinging the regular chorus of the rule of law as thecentrepiece of the administration. Some critics believe that‘the highly over chorused mantra of the rule of law wasmeant to subvert the cause of justice and slow down theprosecution by the Economic and Financial CrimesCommission under Mallam Nuhu Ribadu who has played tothe gallery most times during the immediate pastadministration by prosecuting vigorously, politiciansperceived as opposed to the Obasanjo administration. Theyalso argue that the war of attrition that was engineeredallegedly by the Federal government through the AttorneyGeneral’s office for the removal of the former Chairman ofthe Economic and Financial Crimes Commission MallamNuhu Ribadu by installment was because the key personwho bankrolled the current administration’s campaigns whowere mostly immediate past governors were also targeted forprosecution for alleged corrupt practices by the EFCC.”Third, the anti-graft seem to be missing the mark or ratherare proving counterproductive if the tragic-comedy dramas ofthe Attorney–General who has maximized the cost of chasingfor evidences to nail the indicted globally while minimizingthe benefit of bringing them to book is anything to go by.Based on the above media report expositions it appears thatthe late Yar’Adua’s administration seems to have resolvednot to prosecute prominent Nigerian officials named asbeneficiaries of the massive Halliburton bribe scandal.The most important question then is why ‘dueprocess’ is being used against its own objectives i.e allowingperpetrators of grave misdeeds destroy the very foundations,values institutions and society which law and order and therule of law are meant to protect are implemented in a skewedmanner. The answer to the pretensions cannot be farfetched. The first possibility of government’s bent on663

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.thwarting prosecution of these culprits is traceable to thewonders of the current administration’s appointment of theformer federal Attorney General and Minister of justice (ChiefMichael Aoondooka). It is interesting to know that he notonly became a Senior Advocate of Nigeria (a prestigious titlethat with all due respect to the holders, has become highlypoliticized and competitive) in 2006 and has never featuredin any high profile cases but against all odds (as he is said tobe the candidate of the immediate past governor of Benuestate Mr George Akume as well as having the solid backingof a serving Justice of the Supreme court- the nation’s apexcourt who hails from the same Tiv ethnic nationality) wasfavoured against more experienced and versatileconstitutional lawyer’ (Retrieved from www.voanews.com 18April 2009). And true to the ‘ploy’ since his emergence as anarrowhead there has been a lot of controversies one of whichis his continually balking at calls to prosecute Nigerianspublicly named in those investigations. Media report has itthat “the bribe takers are very close to the president, forinstance, one of them Mr Mohammed Dikko Yusuf, is thepresident’s first cousin while others are the three formerheads of states-Sani Abacha, Abdulsalam Abubarkar andOlusegun Obasanjo- reported to have hauled in millions ofdollars in illicit pay-offs. Among the list of beneficiaries areFunso Kupolokun and Gaius Obaseki, both former topofficials of the Nigerian National petroleum Corporation(NNPC), Edmund Daukoru (a former minister and close aideof Obasanjo’s), Timpre Sylva (current governor of Bayelsa),Ibrahim Umar (who represented Abdusalam Abubakar), DanEtete (a former minister who still enjoys chummy relationswith the Attorney -General), Ibrahim Abacha (son of thedeceased dictator), Sena Donata Anthony, and TonyChukwueke. Even Atiku (though he has denied hisinvolvement in the Halliburton scandal) was conspicuouslynamed in the bribe scandal given that his company Intels(which the late Yar’Adua family also has a substantial stakein), had been a sub-contractor to Halliburton (Retrieved fromwww.voanews.com 18 April 2009).The analysis so far, glaringly portray the dramaswhich seem to be bumping up against a larger problem whilethe most important which is the bringing to book the culpritsas the U.S has don is minimized. In effect, rather than stick664

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)to the promise to fix it, nothing significant seems to havechanged, except that government and its anti-graft agenciestired slogans and dismal performance is more like apropaganda that has succeeded in making governmentincreasingly distant. The characteristic complaints seemsnot to be that government provides no reasons, said formerAmerican justice, William Breman “but that its reasons oftenseem remote from human beings who must live with theconsequences” (cf. Philip, 1994). Thus, the politics to identifythe already known culprits according to media reportsportrays governments as acting like some extra terrestrialpower, not an institution that exists to serve us. Its actionshave an arbitrary quality; it almost never deals with real-lifeproblems such as graft in a way that reflects anunderstanding of the situation as a deterrent to others.Most people do not want to believe the dilly-dally ispremised on how law works i.e that government can’t doanything except as law permits because it appears thegovernment focuses on what it wants the law to do.Accordingly, it also does not make sense to claim to beredressing these imbalance based on the‘re-branding’ Nigeriamovement of 2009, consciousness-raising agenda- of ‘Nigeriagood people, great nation’ if the strive to foster acommitment to the common good is implicitly skewed with‘prebendalist’ interests. Although, it is almost too obvious tosay, making decisions is necessary to do anything but to saythe obvious every decision involves a choice; otherwise therewould be no need to decide. And almost every choice haseither a positive or a negative effect or impact on its maker oron citizens. In the Nigerian context, in the absence of nobody being at the other side of the jail door, government andits agencies could be said to have been benign for not gettingaround to making a decision. The problem with governmenttherefore Brookings economist Chalse Schulze says “is thatit can’t ever be seen to do any harm which explains why veryfew decisions get made despite the damning reportages offacts” (cf. Philip, 1994).Reason flow out why nothing can happen so much sothat many people don’t even bother to try anyone becausedoing so is like scaling a mountain. And the reason isobvious. Media reports have it that the EFCC new boss-Farida Waziri and the former police boss-Mr. Okiro appear665

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.not to have the credibility to fight corruption in the forcewithout discharging allegations of incompetence andcorruption mounting against them. According to mediareports one of the suspects, Mr Mohammed Dikko Yusufplayed a self-serving role in convincing the president inputting forward Mrs Farida Waziri’s name as chair of theEconomic and Financial Crimes commission (EFCC) therebyensuring that the anti –corruption agency that onceinterrogated him during Nuhu Ribadu’s tenure was now inthe reins of a crony” (Retrieved fromwww.Saharareporters.com). The latter who claims to beworking for a reformed, more productive police force hasallegations that he has enriched himself stupendously withbusinesses and homes, including an Abuja shopping mall inhis kitty.The overall affect of the whole scenario is a pervasive“culture of defeatism” (Philip, 1994) even in the face ofimminent peril. So far, in the Halliburton case ‘how thingsare done has become far more important than what is done’because of the utopian invention of the process device whichlike detailed rules aims at avoiding the untidiness of humanjudgment so as to help humans make responsible decisions.Process which presented itself wearing the velvet cloak ofresponsibility has now become an end in itself. And just asrules have turned against us, the exaltation of process hastransformed the idea of fair consideration into a ritualwithout consideration. It has become the orthodoxy ofgovernment (Philip, 1994). The ceremonies and excuses bywhich decisions about the Halliburton scam are avoided nowinstitutionalized in layers of forms of requests makes thegovernment and its agencies to accomplish virtually nothingof what it sets out to-do. With this failed “condition ofresponsibility” it will not be a slight exaggeration to suggest,as Woodrow Wilson a noted political scientist before hebecame president, warned, that our entire government has“relapsed into remissness.” Viewed under history’s light, it isclear that we have deluded ourselves into thinking that theright decisions will be ensured if we build enough proceduralprotection which is actually the opposite because decision, ifthey happen at all, happen by default. Thus, in a systemdesigned to discourage corruption, the government should goby the book bearing in mind that public decisions are not666

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)responsible because no one takes responsibility. And theceiling of corruption will fall in.At this point, it is pertinent to remember why we have‘due processes at all. Process, which is only one of manytools, exists only to serve responsibility, which is whatmatters. In other words, responsibility (which is not a groupconcept), not process (but has been developed into a kind ofreligion for a decade now-1999 to date), is the key ingredientto action and not an opposite system as explicitly stated byPlato that “good people do not need anyone to tell them toact responsibly, while bad people will always find a wayaround law”. By profoundly focusing on the negative that isbeing obsessed with defensive formalisms government inpretending that procedure will get rid of corruption havesucceeded only in humiliating honest people as well asprovided a cover for darkness and complexity for the badpeople. This is the dilemma here especially as many mightask, doesn’t government have to treat everyone the same?Actually, aside from basic services, government seems to bein business of treating people differently. Surely, in the fightagainst corruption, equality requires a uniform fairness. Butagain, what is fairness? How can we determine if it is itfairness to the person indicted or to the common good?Procedural fairness sounds good, but it turns out to betroubling inaction as it so quickly spins out of reality giventhat the present experience where practically everyone haslost respect for the regulatory process. How could it beotherwise, with the delays, the costs, the manipulations, thehypocrisy and perhaps worst, which is that the boasts offairness that destroys real fairness?The important thing to understand is that though the‘velvet Trap of Due Process’ tries to make sure things aredone properly i.e to prevent cheating or playing favouriteshowever, it must be observed that government, underdemocracy, can take away anyone’s liberty. Thus, though athief caught red-handed is entitled to the presumption ofinnocence’ an idea wrapped up in the thought that the law“hears before it condemns” based on the hallowed protectionagainst government coercion of a citizen (i.e is a way ofmaking sure government doesn’t frame citizen’s). In effect,there should however, be a difference between the patternswe set for ourselves and legal process that should always be667

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.subject to change or exception where the procedure gets inthe way of a sensible result. But instead the former AttorneyGeneral’s procedures apparently bother on: Did everythingget considered? Can anyone criticize our procedures? Thisprobably explains why government intensely watches itself inthe mirror instead of the important goal of focusing on howto get the job done.In effect, the almost religious preoccupation withprocedural conformity in trying to justify fairness throughthe seeking of assistance from America the Attorney Generalof the Federation has not only thrown its cloak over treatingthe actual goal which is combating corruption but succeededin rendering anti-corruption initiative inefficient. It ispertinent to understand that “fraud, notwithstanding all theprocedural layers will happen all the time because first,orthodoxy, not practicality, is the foundation of process. Itsdemons which are corruption and favouritism turns out tobe a pejorative synonym for enthusiasm while ‘objectivity’, atleast in the broader world, only implies decisions based onfacts. Objectivity does not preclude judgement or intuitionthat flows from facts” (Philip, 1994: 56). In accordance tothis argument, on the definition of objectivity prevailing ingovernment, (though only a robot is truly adequate for thejob of which the former Attorney General of the Federation-Aaondoka is not) however, his actions on behalf of thegovernment and in tandem with the EFCC Act are supposedto be more objective because the role of an attorney Generalof a Federation “borders on balancing ‘the precepts ofjurisprudence and those of reason and good conscience”(Cardoso, 1924) However, given that the creed of thisorthodoxy is a perfect uniformity with government then itwould not be out of place to say that only if all things aredone the same way can government be fair. In effect, theoperating instruction of modern government should be thatit must act as an impartial decision maker i.e givingeveryone equal access as an impartial decision maker,making sure everything it does satisfies a broader goal ofequal treatment of all its citizens without the taint ofsomeone’s subjective evaluation. And, though achievingcomplete objectivity is the goal in the Halliburton case butotherwise unfair factors being considered such asgovernments answering any potential complaint with one668

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)more procedure is not only like ‘a mice on a wheel’ but‘shuffling to the rhythms of process’ has turned the exerciseinto the creature Nigerians love to loathe.Let us take the process of ‘waiting for AmericanAssistance to conclude the investigation’ or the gallivantingto America by the former Attorney General of the Federationnow turned anti-corruption vendor for information work orfunction for us for the common good? The waste of publicfunds caused by the process is not only almost inconceivablebut has succeeded in making the procedural rituals,designed in the name of fairness so as to be sure of facts, tooexasperating for Nigerians. This is because higher cost isinvolved in the paper work because the bureaucrats whoprepare the forms and attend the meetings will be paid. Thismust have prompted Drenis Norger in 1989 (cf Philip, 1994)to say that these ‘confusing, and often contradictory, arrayof regulations…have no relationship “even to common sense”of the rigidity of the procedures, which supposedlyeliminates the normal give-and- take essential to achieveresults, meaning that government regularly will not do theright thing or be progressive. Whatever the amountattributable to procedures of getting facts about Halliburton;it can be fairly described as a chunk out of the NigerianBudget. It is obviously not possible to calculate the waste.In sum, instead of the government as well as the EFCCtransfixed by the possible brightness of hope by staring intothe headlights of the U.S for infinite assistance to theirrequest it is wise to turn to the other direction which istranscending cosmetic measures to fighting graft in a nononsensepragmatic way.5. Some ConclusionsI want to conclude against the difficult backgroundthat for the Attorney-General as well as the Economic andFinancial Crimes Commission (EFCC) is not likely to make itto the history book because citizen’s trust in the ability of669

Contradictory Positions of Government and its Anti- Graft Agencies: An Analysis of theHalliburton Case from Media Reports.the government to fight corruption may have beencompromised and seriously undermined. And, given that thedistrust that has trailed the Halliburton scam has been toooverbearing for government to curry the favour of its citizens,it should be neutral and almost judicial rather than harpingon due process as though it is in the common interest of all.In effect, given that ‘the government has become soencrusted with self-imposed rules and procedures so muchthat nothing is getting done’, the expectation of Nigerian’s isfor the government to heed the advice of Jim Landis whowhile preparing a special report for president-elect Kennedy,said that the pressing problem today… is to get theadministration to assume the responsibilities that it properlyshould assume” (cf Philip, 1994). To this end, the bane ofgovernance (now defined by procedural rules given the variedscores of investigations) is to make those choices that willremedy the menace of graft, not to avoid them under theillusions of searching for nonexistent truth.ReferencesAdigun, A. B. Agbaje, (1992). The Nigerian Press, Hegemony, and theSocial Construction of Legitimacy 1990-1983. The Edwin Mellen Press.New York.670

Ifeyinwa Ogbonna-Nwaogu, National Open University of Nigeria (Lagos,Nigeria)Agang, J., (1983.) “Effects of Indiscipline and Corruption-WorkersAttitude to work”, Paper presented at the National Seminar on ‘Ethical Reorientation’sCommittee on Indiscipline and Corruption and their AdverseEffects on the Nigeria Society and Economy, Ahmadu Bello University,Nigeria, 11-15 April.Claudio Schuftan, (1998). Beyond Maldevelopment Praxis in Africa.Dakar: CODESRIA Monograph Series, no. 1.Dahl Robert, (1971). Polyarchy. New Heaven: Yale University Press.David Truman, (1951). The Governmental Process. New York: Knopf.Elklit Jorgen, (1994). “Is the Degree of Electoral DemocracyMeasurable?” in Beetham David (ed.), Defining and MeasuringDemocracy. London: Sage.Ehosa Osaghae, (1994). “Ethnicity in Africa or African Ethnicity: TheSearch for Contextual Understanding” in Hurimelstrand, U., KabiruKuyanjui and Edward Mburugu (eds), African Perspective andDevelopment. London: James Currby Ltd.Economic and Financial Crimes Commission Code of Conduct Bureauand Tribunal, (2002). Money Laundering Act. Nigeria: LawlordsPublication.Genhard Lenski, (1968).“Persons and Punishment” The Monist.Henderson, (1987). “Moving Beyond Economism’, IFDA Dossir 75/76,January/April.Jane Mansbridge, (1990). Beyond Self Interest. London: The University ofChicago Press.John Vivian, (2003). The Media of Mass Communication. United States:Pearson Education Inc.Longsdale J., (1981). ‘States and Social Processes in Africa: “AHistoriographical Survey,” African Studies Review, vol. XXIV, nos. 2 and3, June/ September.Max Weber, (1964). The Theory of Social and Economic Organisation.Talcott Persons: Glencoe.671

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