CHAPTER ONE

PRELIMINARY CONSIDARATIONS

1.1 INTRODUCTION

It is a truism that corruption is a cankerworm that has eaten deep into the fabric of the Nigerian society today. From government officials at the highest echelon to the ordinary man on the streets. This “plague” called corruption has influenced their thought patterns, behavioural models and their dispositions to the handling of officials, ordinary citizens, affinal and consanguinal relationships.

These enigmatic problems caused by corruption have strengthened over the years, advancing with the growth of technology and metamorphosing into a core in the sub-stratum of a global village – the world. The resultant effect of this scenario is an importation of advanced levels of corruption and corrupt practices in Nigeria. Take for example, internet or “e-fraud” as it has been christened by many. In these corrupt practices were not known to or practiced by Nigerians in Nigeria. But today, they almost seem to represent the shebang of corrupt practices in the country. And in view of the ever changing political terrain in the country where money has become the overriding determinant to securing elective political positions, the need for a structure to effectively combat this menacing monster cannot be over-emphasized. This and many other considerations informed the creation of the independent corrupt practices (and other relation offences) commission in the year 2000 (I.C.P.C)1

The problem with Nigeria has never been lack of sound policies, laws and institutions established to eliminate or reduce corruption to the barest minimum in the society. The problem has been the lack of implementation of these policies due to the fact that implementation of government policies on corruption always fail to reproduce the desired results judging by the rapidly growing irrepressible hydra-headed monster of corruption in Nigeria. This long essay represents an attempt to critically examine the role of the independent corrupt practices and other Related Offences Commission in the fight against corruption in Nigeria.

The scope of the commission’s powers as outlined under the Act is basically to check corruption in government institutions, with the resultant effect of ensuring

1 See the ICPC Act, 2000, repeated by the ICPC Act, 2002, Cap. C 31 LFN 2004.

 

credibility and accountability by officials in public service. The commission also play a major role in educating the public on the menacing effect of corruption in the society. A summary of the role of the commission is captured in the powers given it by the Act. This long essay makes an attempt at investigating the role played by the commission in extricating corruption from the fabric or the Nigerian society. In order to do this, there is need to examine some terms which are necessary to getting a clear understanding of the concept of corruption as a whole. It is also necessary to probe into the historical foundation, vis-avis the cause of corruption in the Nigerian society. This well than be followed by a critical examination of the commission, its structure, powers and mode of operation in accordance with the ICPC Act in order to bring corrupt officials to justice. But it will be observed that the co mmission, in carrying out its mandate, is faced with some challenges which militate its efforts. There is also the issue of independence of the commission as well as the issue of duplicity of its functions with that of other anti-graft agencies, as some factors which work against the smooth operation of the commission in its task.

1.2 DEFINITION OF TERMS

In view of the wide scope of the effects of corruption in society, together with the nature of offences caught under the ICPC Act, it is pertinent to examine some concepts or terms which are necessary for getting a clear understanding of the nature and extent of corruption. Some of these terms as used in the Act are considered below.

1.2.1 CRIME

It is difficult to present a universal definition of crime. The reasons are obvious, but foremost is the fact that acts defined as criminal vary with time and space. An act may be a crime in one society, but not in another. Likewise, an act defined as a crime at one time may not be at another. In some cases even if same or similar acts are defined as crimes. In different societies, the gravity or seriousness to which each society views the acts may be different. In addition, there are conflicting views on the definition of crime among jurists and social scientists, mostly bordering an ethical and ideological orientation.2

Black’s Law Dictionary defines crime as follows:

2 Dambazau, A.B. Criminology and Criminal Justice 2nd ed, (Ibadan, Spectrum Books Limited, 2007), 48.

 

An act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.3

The words “crime” and “offence” are used interchangeably in Nigerian law. In both the Criminal Code4 and the Penal Code5 use is made of the word “offence” rather than of he word “crime”, but since the adjective “criminal” is also used in both codes and in the constitution, the words “crime” and “offence” would appear to be interchangeable, and the courts used both terms in discriminately.6

The Criminal Code Act7 defines an offence as:

The act or omission which renders the person doing the act or making the omission liable to punishment under this code, or under any Act, or law, is called an offence.

The Penal Code Law8 also contains analogues provisions.

1.2.2 BRIBERY

Bribery is the corrupt offering, soliciting or receiving of anything of value in exchange for official action, influence, or the withholding of official action contrary to public duty.9 It cannotes the corrupt payment, receipt, or solicitation of a private favour for official action.10 Thus, the term “bribery” is an offence of giving or offering of bribe or receiving or soliciting a bribe. A bribe is described as a price, reward, gift, or favour bestowed or promised with a view to pervert judgement of or influence the action of a person in a position of trust.11

In Commissioner of I.C.A.C. v. Ching Poh12 the court defined bribery as the offence of taking, or bestowing, or promising, a price, reward or favour intended to influence the judgement or conduct of a public official. In its legal sense, it implies corruption.

3 Ganner, B.A, et al, Black’s Law Dictionary 8th ed (St. Paul Manor, West Publishing Co. 1999) p. 397

4 Cap C38 LFN 2004

5 Cap P3 LFN 2004

6 Okokwo and Naish, Criminal Law in Nigeria, 2nd ed, (Ibadan, Spectrum Books Limited”, 19 (1980).

7 Cap. C38 L.F.N. 2004, Section 2.

8 No. 18 of 1959 (Cap. 89 Laws of Northern Nigeria, 1963) Section 28.

9 Radda, S.I, “corruption and the survival of Democracy in Nigeria”, in M.M. Otu and Haruna, et al (ed) constitutionalism and Democrary in Nigeria, (Issues Communications, Kaduna 2000) p. 204.

10 Garner, B.A et al, supra, n.3, p. 204.

11 Ibid, p. 203

12 (1997) 1 WLR 1175.

 

1.2.3 FRAUD

“Fraud” is defined as misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. It could also mean a misrepresentation made recklessly without belief in its truth to induce another person to act. Fraud is usually a fort, but in some cases (especially when the conduct is willful) it may be a crime. This is known as intentional fraud.

The common law relating to fraud was established by the House of words in Derry v. Peek13. Where it was decided that in order for fraud to be established, it is necessary to prove the absence of an honest belief in the truth of that which has been stated; in the words of Lord Herschell:

Fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.14

The converse of this is that however negligent a person may be, he cannot be liable for fraud, provided that his belief is honest; mere carelessness is not sufficient, although gross carelessness may lead to a conclusion that he was not honest.15

1.2.4 EMBEZZLEMENT

Embezzlement means the fraudulent taking of personal property with which one has been entrusted, especially as a fiduciary.16 In other words, it is the fraudulent taking of another’s money or property for personal use by a person entrusted with it. For example, cases such as the one involving governors, directors and pension administration etc.

The criminal intent for embezzlement arises after taking possession, not before or during the taking.

13 (1889) 14 App. Cas. 337

14 Ibid, at p. 374.

15 Chitty on contracts, 24th ed. (London, Sweet and Maxwell, 1977), 372.

16 Garner B.A, supra n. 3 at p. 561.

 

1.2.5 DEFINITION OF CORRUPTION UNDER THE ACT.

Corruption is defined as depravity, perversion, faint, an impairment of integrity, virtue, or moral principle, especially the impairment of a public official’s duties by bribery.17 In another perspective, it is described as the act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others, a fiduciary or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others.18 Corruption is a general term and includes bribery, fraud and other related offences.19 Consequently, covers a wide spectrum of acts and not just simply an act of giving and receiving of bribes. It covers such acts as the use of one’s office for non-pecuniary and pecuniary advantages, gratification, influence peddling and insincerity, with the aim of gaining advantage. It also consists of offices, promises, gifts (in cash or in kind), presents or other forms of advantages as considerations for pervasion of course of justice.

The ICPC Act 2000 defines corruption thus:

“corruption” includes  bribery, fraud and  other related

offences.20

1.3 THE SCOPE OF CORRUPTION21

Corruption is a deviation from social norms22, and it serves private and selfish interests for personal aggrandizement or a furtherance of family, clique or tribal sentiments. Corruption is wider than just taking bribe. It encompasses embezzlement, nepotism, favoritism, settlement, misappropriation, influence peddling, fraud, plagiarism, examination and electoral malpractices, etc. The view of Afe Babalola SAN corroborated this wider dimension of the term when he affirmed that corruption is;

Any use of power by anybody for capricious or arbitrary use or any other purpose foreign to which it is meant.

17 Garner B.A, et al supra n.3.

18 Ibid

19 Section 2, Corrupt Practices and other Related offences Act Cap. C31 LFN 2004.

20 Section 2 of the ICPC Act, 2000.

21 See general, Itua P.O., et al. “The Nigeria Police and the Fight Against Corruption: An Assessment of Governmental Policies” in the Proceedings of the 46th Annual Conference of the Nigeria Association of Law Teachers on Corruption and National Development held 22nd – 26th August, 2013 at the University of Illorin, Illorin, Nigeria, pp. 56-58.

22 Offion, D. “The Prevalence and Repercussions of Corruption in Nigeria” in Nigeria: Corruption in Development, Odekunle, F. (ed) (Ibadan; University Press, 1982), p. 164.

 

To add to the view expressed above, corruption, in course of employment, extend, to giving an available job to someone who has not met the requirements and thereby sideling others who have and who indeed applied for it. Corruption is where a lecturer gives a student a grade he or she does not deserve in exchange for monetary or other considerations. The list is endless.

A statutory range of corrupt offences in Nigeria is provided for in the Economic and Financial crimes commission (Establishment) Act 2004, Section 46 thereof provides that:

Economic and Financial crimes mean the non-violent, criminal and illicit activities committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms

23 Quoted in Inegbdion, N.A. “Corruption and Anti-corruption Legislations in Nigeria”. (2004), vol. 1, No. 2, University of Benin Law Journal 139 at p. 143.

 

deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic waste and prohibited goods, etc.24

It is evident from the above statutory provision that most of the activities described as corrupt practices stem from he illegal business activities of unscrupulous businessmen and women. Some of them even have international prohibitions and are also regulated by international law. However, there are other statutory provisions in Nigeria which identify other kinds of corrupt offences outside economic and financial crimes such as forgery, exam malpractices etc. penalties are also provided for the commission of all corrupt offences in the statutes.

However, it should be noted that corruption has become a hydra-headed monster in Nigeria with harrowingly devastating effects in both the economy and development. Apart from increasing the cost of services, it erodes the institutional capacity of government, undermines economic development, weakens and reduces the legitimacy of a government, undermines democracy and good governance. It engenders the breakdown in law and order and political instability. It is also the major reason for the current brain drain in Nigeria whereby intelligent and creative citizens emigrate to other countries to seek greener pastures. Corruption breads mediocrity and low productivity in the system. The effect of corruption can be so overwhelming that it could stagnate a nation.25

A recent cross-country survey carried out by Transparency International identified what is termed political or Grand corruption. It has been argued that this is the bane of the Nigerian nation in present day politics, and this takes place in all the levels of political authority. It occurs when people in power formulate laws and execute government policies in a manner that will benefit them and manifests when the process of governance is interrupted with large amount of money by political players to obtain favours from the government of the day.

24 Cap. EI, LFN. 2004.

25 See generally N.A Inegbediofn, “Corruption and Anti-corruption Legislations in Nigeria: A Critique” supra n. 23.

 

1.4 THE HISTORICAL AND PHILOSOPHICAL FOUNDATION OF

CORRUPTION IN NIGERIA

The Nigerian pre-colonial society exited and operated in different parameters in social, political, and economic settings the coming into contact of the various societies with the British brought about a gradual transformation in the legal and socio-political and economic settings of each society. Though existing political institutions were left to exercise their independence, their power to develop the societies the way they wanted was undermined. The blatant creating and exploitation of the indigenous people and their resources placed no emphasis on principles of good governance such as accountability and transparency in the management of ht affairs of the nation under the harsh rule of the colonial masters. This prompted the Native Chiefs whose primary duty was to rule to abandon their responsibility to account for their stewardship to their people, as were the colonial administrators, concerning the exploitation of the natural potentials that were manned in their areas. Instead, account was being rendered to the colonial secretary in far away London. This neo-colonial posture was expected to persist even after the grant of a premature independence to Nigeria in 1960.

It is safe to say, at this juncture, that it was Britain that introduced corruption into Nigeria as it was faced with corruption many years before it came to colonise the various entities now known as Nigeria. This assertion is evident from the British naval history around the 18th century concerning reports of corruption in supplies to forces which even metamorphosed into the setting of a shop publicly at the government pay office wherein members of parliament took bribes from he king to support of the proposed bill in the House of Parliament.26 This type of corrupt practices involving legislators in the conduct of legislative experience in Nigeria in 2006, when bags were seen in display in the floor of the National Assembly and the money therein distributed to legislators in a bid by former president Olusegun Obasanjo to attain a third term in the country.

The assertion that the current corruption in Nigeria is a product of British colonialism can be supported by the series of laws that were enacted by the British parliament long before they colonized Nigeria. Some examples of these legislations include the 1809 sale of offices Act, 1889 public Bodies Corrupt Practices Act, the 1925

26 Adebayo, A. Power in Politics (Ibadan: Spectrum Books Limited, 1999), p. 26.

 

Honours (prevention of Abuses) Act etc. The promulgation of these laws in corruption points to the fact that corruption was a major problem in Britain before its companies and people came to Nigeria and the Natural colonization of the country transmitted many of the corrupt practices already in existence in English into the indigenous elites that were in the colonial service and later succeeded the colonialists us leaders of Nigeria. Thus, the pioneers of the first Nigerian coup d’etat were inspired by the desire to rid the nation of corruption, apart from the then pervading political agitations catalyzed by election rigging and political thuggery. The reports of the various panels of inquiry into the assets of public officers and other persons set up bye then Federal Military Government revealed large scale misappropriation of public funds and unjust enrichment by arstarhile civilian political leaders.27 The General Yakubu Gowin administration had to forfeit the assets of a number of persons. This give rise to a number of litigations including the famous case of Lakanmi and Anor v. A.G. Western State.28

The Nigerian Criminal Code which is a duplicate of the criminal code framed by the British lawyer, Sir James Fitz Stephen is another reason advanced to lend credence to the British for introducing corruption in Nigeria. This code contains provisions in various crimes including official corruption which Fitzstephen considered as an evil affecting the British society at that time. The though-provoking question here is that, if corruption was not a problem in the British society, why would Fitzstephen worry about contriving a criminal code for England including provisions in corruption? Therefore, the safest conclusion that could be made by any rational mind is that the British colonialists brought this evil into Nigeria, planted and later transferred it to the indigenous people that were recruited by them into colonial service. Ironically, corruption has always topped the list of reason for violent change of government and each to emerging government will always claim to fight corruption with he last drop of her blood. At the end, what we see is the blood of corruption being nourished consciously by those leaders.

1.5 CAUSES OF CORRUPTION IN THE NIGERIAN SOCIETY

It is no longer in doubt that corruption is one of the most devastating problems confronting Nigeria over the year. There is hardly any area of human endeavour that has

27 Ownuwa S.C., Nigeria Government and Politics Since Independence, (Owerri: Versatile Publishers, 1998) p. 53.

28 (1971) 1 U.I.L.R. 201.

 

not been affected by the malaise. Many causes can be identified for giving rise to corruption in various segments of the Nigerian society. Corruption has caused the country a lot of international embarrassments. Hereunder is an examination of some of the major causes of corruption in Nigeria.

a) Poverty

Poverty is one of the causes of corruption in Nigeria, particularly among the low income earners, the destitute who are faced with the challenges of basic necessities of life such as food, shelter, clothing and medical attention. These persons in most circumstances are compelled to do anything in order to sustain their lives. However, the irony is mostly committed by people in high profile offices and can hardly be referred to as being poor. The point must be made here that although Nigeria is blessed with both human and natural resources, yet poverty is running virtually in the blood stream of its citizens. Many Nigerians are unemployed, and majority are living below the poverty line. The employed who are deemed to be fortunate are faced with two major obstacles: first, the employment and its contents are below the minimum standard expected in the international community, thus, not well enough. It is general knowledge that more than 50% of the nation’s population live below a dollar. Secondly, the privileged employed citizens had their irregular wages reduced to a mere paper tiger by the inflation that is galloping at meteoric velocity. The inflation rate has reduced meaning in the so-called basic salary, allowance and entitlements of the workers thereby inflicting endless pains in their families. This factor could not be far from what influenced the recent call by the Nigerian Labour Congress for increment in the minimum wages of government workers, which has since been implemented by some states. But those who work in the private sector are however still under the lordship of their employers.

With an environment life this, an opportunity to make a few little extra cash through corruption will most likely be welcomed. Thus, one may be tempted to engage in corrupt activities to see that ends meet, no matter how principled one may be.

b) Greed

Greed, more than any other factor is responsible for corruption practices that are perpetrated by Nigerians especially those in public, elected offices and big private establishments. The case of Federal Republic of Nigeria v. Tafa Balogun29 is illustrative. Here an Inspector General of police who was well remunerated was found to have embezzled about N17 billion naira of police funds. He was arraigned before the court for official corruption, theft and misappropriation and was accordingly convicted and punished. The involvement of an officer of his rank in corruption can best be attributed to greed. Even Governors, the highest political office holder of a state, are not left out. In Federal Republic of Nigeria v. Lucky Igbinedion30, the convictions secured against a former Governor can best be attributed to greed. Several bank C.E.O.’s were also arraigned before the court for offences relating to corruption in dealing with customer’s funds and were punished accordingly.

c) Inequality in Wealth Distribution

The Nigerian society is presently constituted by two classes of people-the rich and the poor. The gap between these two keep widening by the day. Those in the “right side” want to ensure that they and all their unborn generations remain in that side, while those in the other side want to get out of it and will do just about anything to ensure that they do get out of it. Furthermore, the quick manner in which people who occupy high profile offices in Nigeria become rich over-night strengthens this gap and this largely account for the persistence of corruption in Nigeria, as it serves as a source of motivation to other corrupt minds to hold similar offices and become rich as well.

d) The Family and societal Expectations.

Family and societal pressure accounts for propelling corruption in the Nigerian society and as such corrupt actions are not often perceived as something that is wrong should be hated and condemned. In fact persons who engage in corrupt

29 Unreported Suit no. FHC/ABJ/CR 14/2005 (Federal High Court Abuja).

30 Unreported Suit no. FHC/EN/2008 (Federal High Court Enugu).

 

e) Government Policies

Government policies can also induce or cause corruption. This arises when there exists pervasive regulations with government officials having excessive degree of discretion in applying them. Many corrupt practices that are committed in government offices and private organizations are facilitated by lack of compliance with the established rules and regulations for reaching those decisions and actions. This practice is known as lack of compliance with due process. Its abuse has led to the collapse of many government institutions, banks, and financial houses in the country. This is seen in trade restrictions wherein some important goods are restricted by government policy, but some politicians and government officials amass wealth for themselves by allowing such restricted goods pass through customs and into Nigerian boarders. Another good example is what played out in Federal Republic of Nigeria v. Shittima Bulama31, where the accused, the manager Director of Bank of the North Ltd. was arraigned for granting several overdraft facilities to himself above the limit provided in the bank’s rules and regulations, without collaborate and approval of the Central Bank of Nigeria. This led to the collapse of the bank.

f) Weakness of the Law and Institution on Corruption

The weakness of the law and appropriate institutions in punishing corrupt people effectively have propelled other persons who stand and watch those arraigned but escape the course of justice to involve in corruption. This weakness arises as a result of lack of proper procedure arising from he failure of the court to take proper plea, poor drafting of a charge sheet which leads to a discharge of an accused person who is otherwise culpable on he ground that the charge sheet in

which he is arraigned is defective, 0n account of misjoinder of offences,32

31 (2010) 1 ECLR 137-165.

32 Sections 157-161, criminal procedure Act 2004 and sections 213-216 criminal procedure code.

 

misjoinder of offenders33, ambiguity34 and duplicity.35  The resultant effect is the

sacrificing of justice in the alter of technicalities.

1.6 THE HISTORY OF HE ESTABLISHMENT OF THE I.C.P.C.

The phenomenon of corruption predates Nigeria’s in dependence. Therefore, the corrupt practices and other related offences Act, 2000 is not the first anti-corruption legislation in the country. The pre-existing legal framework and institutional mechanisms for fighting corruption after independence include the 1963, 1979 constitution. The Money Laundering Act,36 advance feed fraud Act,37 the miscellaneous offences Act38 etc. Others include the criminal code39 and penal code40 both of which collectively have not less than thirty sections regulating different aspects of corruption by public officials. In addition to the above statutes and others too numerous to mention, the constitutional provisions against corruption in the country include the code of conduct for public officers contained in part 1 of the fifth schedule to the extent 1999 constitution. It was meant to prevent corruption and abuse for Nigeria after several years of military rule and it marked a new down for Nigeria in more ways than one, not least in the fight against corruption. At the time the civilian administration came into power, corruption in Nigeria had indeed become a full blown cancer. In 1999, Transparency International Corruption perception Index rated Nigeria the second most corrupt nation in the world. Although corruption is a global malaise, the extent of its reach in the country was tragically stupendous. All indicators showed that the spread of this cancer had become frightening. It pervaded private and public institutions and overwhelmed all levels of government.

The price of corruption has been extremely high. The economic, socio-political and moral bases of the country have been severely eroded and degraded. It has brought us near the brink and almost rendered us hopeless. Even religious institutions, the gate keepers of the nation’s moral conscience, were not immune to the ravages of the cancer. It became imperative that something drastic had to be done to arrest the rot. This impelled

33 Okojie v. commissioner of police (1961) WRNLR 91.

34 Section 156, criminal procedure Act, 2004 and Section 212, criminal procedure code.

35 Okeke v. commissioner of police 12 WACA 363

36 Cap. M48 LFN 2004

37 Cap. A6 LFN 2004

38 Cap. M17 LFN 2004

39 Supra, n. 4.

40 Supra, n. 5.

 

the commitment of the president to tackle corruption head-on. The I.C.P.C Act 2000 brought a fresh and decisive perspective to the fight against corruption in the form of a holistic approach encompassing enforcement, prevention and educational measures. It captures in a single document, a host of corrupt offences in their old and sophisticated guises. It sets up the independent corrupt practices and other Related Offences Commission41 with wide-ranging powers. The Act brings under its purview all Nigerians, in the private and public sectors and even those public officers with constitutional immunity.