Monday, February 15, 2010

Beyond the Grandstanding: an Open Letter to Professor Dora Akunyili - By Osita Mba

Dear Professor Akunyili

Like most Nigerians, I have followed the very public spat between your good self and your ministerial colleague, the former Attorney-General of the Federation and Minister for Justice and incumbent Minister for Special Duties, Mr Michael Aondoakaa, with considerable interest. As someone that called for the removal of Mr Aondoakaa as Attorney-General as far back as November 2008 because of my belief that he lacked “the requisite integrity, ability, experience and maturity required of the person holding that high and important office,” I consider whatever embarrassment you cause him in relation to his alleged libellous statement as part of his thoroughly deserved comeuppance.

However, although there is no reason to suggest that you will not pursue a libel case against him to its logical conclusion should he fail to provide the clear apology you have requested, it remains the case that our politicians are notorious for threatening and indeed instituting defamation suits with fanfare in the full glare of the public only to abandon them quietly and in private subsequently. A case in point is the five billion naira libel suit instituted in 2004 by Chief Anthony Anenih against Chief Orji Uzor Kalu. Incidentally, that suit was filed on Chief Anenih’s behalf by Mr Aondoakaa’s successor as Attorney-General and Minister for Justice, Mr Adetokunbo Kayode.

Moreover, the decision to make the letters written to Mr Aondoakaa by your lawyers widely available to the public and the contents of the letters themselves appear to evince an intention to prove your incorruptibility in the court of public opinion, over and above the resolution of your private dispute with Mr Aondoakaa in the court of law. For example, the letter of February 11, 2010 refers to your “integrity” that “has been unimpeachable”; reveals that you have “been inundated with telephone calls and personal enquiries from numerous people ... concerning the implication that [you] did something wrong while [you were] the Director General of NAFDAC”; and concludes that you find it “totally unacceptable that [your] peers and generality of Nigerians have begun to question [your] integrity and now consider [you] a disreputable person”, all on account of the statement credited to Mr Aondoakaa.

Given the relegation of integrity and accountability to the background in our public life, your principled stance on the matter deserves the support of all right-thinking members of the Nigerian society. However, going by various comments in the media, there appears to be a consensus among the chattering classes that neither an apology from the discredited Mr Aondoakaa nor a successful libel suit against him in our increasingly unreliable courts will be sufficient to establish your unimpeachable integrity to the satisfaction of the Nigerian public. I note that this view is to a large extent supported by the law – it is a basic principle of the law of defamation that an alleged defamatory statement is presumed to be false unless the defendant can prove its veracity. Since there is no concomitant obligation on the claimant to prove the falsity of the alleged defamatory statement, a successful libel suit, while reflecting favourably on the character of the person defamed, does not necessarily prove his or her unimpeachable integrity either in the matter at hand or generally.

Fortunately, there are other more credible means available to principled public officers in your enviable position to establish their unimpeachable integrity in the court of public opinion.

1. Publication of Assets Declaration Forms

Paragraph 11(1) of Part I of the Fifth Schedule to the 1999 Constitution provides that every public officer shall (a) immediately after taking office and (b) thereafter at the end of every four years and (c) at the end of his/her her term of office, submit to the Code of Conduct Bureau a written declaration of all his/her properties, assets, and liabilities and those of his/her unmarried children under the age of eighteen years. Furthermore, section 149 of the Constitution requires a Minister of the Government of the Federation to declare his/her assets and liabilities as prescribed in the Constitution before commencing the duties of his/ her office.

Therefore, you would have submitted an Assets Declaration Form to the Code of Conduct Bureau on at least three occasions: (i) when you assumed office as the Director General of National Agency for Food and Drug Administration and Control (NAFDAC) on April 12, 2001; (ii) on the fourth anniversary of your assumption of office as the Director General of NAFDAC in April 2005; and (iii) on December 17, 2008, when you left NAFDAC to take up your current position as Minister of Information and Communications.

Paragraph 3 of Part I of the Third Schedule to the Constitution authorises the Code of Conduct Bureau to retain custody of these assets declarations and to make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe. Although the National Assembly have failed to prescribe the terms and conditions for such compulsory public inspection, nothing stops any public officer that wishes to demonstrate his/her integrity from disclosing voluntarily the details of his/her Assets Declaration form. Indeed, President Umaru Yar‘Adua provided a copy of his Assets Declaration Form to the public after a few weeks in office, and after some dogged resistance the Acting (then Vice) President Jonathan followed suit shortly after.

I would respectfully suggest that, without prejudice to any libel suit against Mr Aondoakaa, the voluntary publication of your relevant Assets Declaration Forms will provide a more transparent and credible means of establishing your unimpeachable integrity during your tenure as the Director General of NAFDAC and beyond.

2. Section 44 of the ICPC Act 2000

Section 44(1)(a) and (b) of The Corrupt Practices and other Related Offences Act 2000 (“the ICPC Act”) empower the Chairman of the Independent Corrupt Practices and Other Related Offences Commission (“ICPC”), if in the course of an ongoing investigation he has reasonable grounds to believe that any offence under the Act has been committed, to require any person suspected of having committed such offence or any relative or associate of the person or any other person whom the Chairman has reasonable grounds to believe is able to assist in the investigation to furnish a statement in writing on oath or affirmation in order to:

(i) identify every property, whether movable or immovable, whether within or outside Nigeria, belonging to him/her or in his/her possession, or in which he/she has any interest, whether legal or equitable, and specifying the date on which each of the properties so identified was acquired and the manner in which it was acquired, whether by way of any dealing, bequest, devise, inheritance, or any other manner;

(ii) identify every property sent out of Nigeria by him/her during such period as may be specified in the notice;

(iii) set out the estimated value and location of each of the properties identified ... and if any of such properties cannot be located, the reason therefore;

(iv) state in respect of each of the properties identified ... whether the property is held by him/her or by any other person on his/her behalf or whether it has diminished in value since its acquisition by him/her or and whether it has been commingled with other property which cannot be separated or divided without difficulty;

(v) set out all other information relating to his/her properties, business, travel or other activities as may be specified in the notice; and

(vi) set out all his/her sources of income, including earnings and gifts or other assets for such period.

Section 44(1)(c) authorises the Chairman to require any officer of any bank or financial institution, or any person who is in any manner or to any extent responsible for the management and control of the affairs of any bank or any financial institution to furnish copies of any or all accounts, documents and records relating to any person to whom the above notice has been issued.

Furthermore, section 44(2) provides that where the Chairman has reasonable grounds to believe that any public officer who has been served with the written notice owns, possesses, controls or holds any interest in any property which is excessive, having regard to his/her present or past emoluments and all other relevant circumstances, the Chairman may by written direction require him/her to furnish a statement on oath or affirmation explaining how he/she was able to own, possess, control or hold such excess and if he/she fails to explain satisfactorily such excess, he/she shall be presumed to have used his/her office to corruptly enrich or gratify himself/herself and charged accordingly.

You will agree that a comprehensive statement on oath or affirmation provided by you to the Chairman of the ICPC under section 44 of the ICPC Act and satisfactorily verified as complete and accurate by him will provide the ultimate confirmation of unimpeachable integrity that your teeming fans will be proud to associate you with. Therefore, I have no doubt that if you prove yourself unable to disclose voluntarily your relevant Assets Declaration Forms as suggested above, appropriate steps will be taken to invoke the procedure under section 44 of the ICPC Act with a view to securing your place in history as the paragon of integrity in public life.

Yours sincerely

Osita Mba

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