By
Professor Badaiki
Ambrose Alli University
Corruption has permeated every facet of
life, social, economic, political, the nation wherever one looks, whichever
direction one turns and in whatever place, one was assailed by the stark,
unfortunate and embarrassing realities of our problems. This cankerworm has eaten deep in the economic fortunes of this
nation. The best bidders are hardly guarded government contracts and the
bidding process has become a mere fulfillment of administrative procedures.
Even at the point of payment, the contractors have to bargain with accounts
officials before they can receive payments, there is also the usually
pre-agreed percentages with the officials who may have influenced and
facilitated the awards of contracts. This has resulted in yearly budget increase
to billions of naira and thereby increasing the cost of contracts.
There
are also cases of public funds siphoned by public officials to their personal
foreign accounts at the expense and detriment of the country. Oil and gas
contracts are awarded to incompetent and unqualified persons mostly to their
political associates. This has affected our economic growth greatly. Furthermore,
foreign investors and are often reluctant to invest in the country for fear of
being swindled of large sums of money in foreign exchange and thus having an
unpleasant reputation in the international scene as regards corruption.
Corruption in Nigeria
The most tragic is the way it
perpetrates and spread itself from generation to generation. Where a parent
acquires wealth through corrupt practices and the child is aware of it, might
include the child’s admission to school, the child will conclude that corrupt
practices is the best means to success and in position of authority when grown
will know no other means.
This cancer called “corruption” has
eating deeper and deeper into the fabric of the nation and has negatively
affected the society. It has created crippling effects and consequences which
now manifest in astronomical levels of unemployment, decayed infrastructure and
appalling service delivery in all sectors of the economy, escalating crimes,
violent ethic and religious riots, erosion of institution and administrative
capacity of government, escalating crimes, brazen injustices e.t.c.
These disastrous effects and devastating
consequences and many more on the economy gave birth to several corruption laws
such as the Corrupt Practices and Other Related Offences Act 2000, Economic and
Financial Crimes Commission Act, 2004 and provisions of the Criminal and Penal
codes were made to fight against this cankerworm eating the fabric of the
nation and overcome this social malaise. This paper examines the definition of
corruption, corruption laws in Nigeria
2. DEFINITION OF CORRUPTION
What is Corruption?
There is no single, comprehensive,
universally accepted definition of corruption. Attempt to develop such a definition will invariably encounter a legal,
criminological, and political problems and political problems[1]
The toolkit, like most authors on the subject, therefore took an approach of
listing some of the more common forms of the social malaise and attempted a
definition[2]
from that perspective rather than give a broad-view definition, which would be
subject to narrow interpretation[3].
Some of the ascertained forms of
corruption listed by the toolkit include “grand” and “petty” corruption[4],
“active” and passive”[5]
corruption[6],
bribery[7],
embezzlement, theft and fraud[8],
extortion[9],
abuse of discretion[10],
favouritism, nepotism and clientelism[11],
conduct creating or exploiting conflicting interests and finally improper
political contributions.
This definition is not explanatory and
gives no proper analysis of the forms of corruption but merely spelt them out.
Adopting an explanatory approach Black’s
Law Dictionary defines “Corruption” as:
“An act done
with an intent to give some advantage inconsistent with official duty and the
right of others. The act of an official or fiduciary person who unlawfully and
wrongfully uses his station or character to procure some benefit for himself or
for another person, contrary to duty and the rights of other[12].
This
definition is quite comprehensive, self-explanatory, corruption takes different
forms, degree and particulars. It also covers a whole lot of acts.
An in exhaustive catalogue of acts
constituting corruption has been provided by Professor Iwe as follows:
Conscienceless
promptitude to use power authoritatively for selfish, repressive and oppressive
purposes, unpatriotic and unjustifiable political dissemination and
victimization, scandalous politicizing on the corridors of power, unhealthy and
despicable election malpractices as well as political arrogance and bitterness,
readiness t sacrifice all values no matter how high, sacrosanct or strategic in
the useless worship of, and mad rush for money, wealth, the scandalous practice
of diverting public funds into private confers and of inflating government
contract and other business deals in the hope of eventual kick-backs[13].
From
the definition and the acts constituting corruption highlighted above it is
clear that corruption is not limited to acts which confer on, or generates
undue financial advantage to a person. Any act of abuse of position or position
whether for pecuniary benefit or otherwise constituted corruption.
The Nigeria Criminal Code, the Penal Code,
and the Corrupt Practices and Other Related Offences Act, 2000 do not provide a
sufficient definition of corruption. Section 2 of the Act provides that
corruption “includes bribery, fraud and other related offences”.
Section 98 of the Criminal Code provides
as follows:
Any
person who:
a.
Being employed in the public service, and being
charged with the performance of any duty by virtue of such employment, not
being a duty touching the administration of justice, corruptly asks, receives
or obtains or agrees or attempts to receive or obtains any property or benefit
of any kind for himself or any other person on account of anything already
alone or omitted to be done, or be afterwards done or omitted to be done, by
him in the discharge of the duties of his office, or
b.
Corruptly gives, confers, or procures or promises
or offers to give or confer, or to procure or attempt to procure, to, upon, or
for, any person employed in the public service, or to upon, or for, any other
person, any property or benefit, or any kind on account of any such act or
omission on the part of the person so employed, is guilty of a felony and is
liable to imprisonment for seven years.
The
Penal code, section 115-122 relating to corruption. Thus section 115 provides
as follows;
Whoever
being or expecting to be a public servant accepts or obtains from any person
for himself or for any other person any gratification whatever pecuniary or
otherwise, other than lawful remuneration, as a motive or reward for:
1.
Doing or for bearing to do any official act, or
2.
Showing or forbearing to show in the exercise of
his official functions favour or disfavour to any person; or
3.
Tendering or attempting to tender any service or
disservice to any person with any department of the public service or with any
public servant as such shall be punished.
Both
definitions by the Criminal and Penal code are so technical and complicated.
They also only addressed corruption in the public sector and did not widen the
scope of the Offence[14]
In
the case of Biobaku V. Police[15],
Bairamian, J. defined corruption as the receiving or offering of some benefit
as a reward or inducement to sway or deflect the receiver from the honest and
impartial discharge of his duties.
This
definition appears to define bribery more than corruption because corruption is
a wider concept that encompasses bribery. Corruption may occur without the act
of receiving or offering some benefit as a reward of inducement to sway or
deflect the receiver from the honest and impartial discharge of his duties.
Lateef
Adegbite adopts the moralist approach in defining corruption. He defined
corruption as “moral deterioration, depravity and perversion of integrity by
bribery or favour”[16].
He stated that corruption in its widest sense “connotes the perversion of
anything from its original state of purity, a kind of infection or infected
condition”[17].
He further stated that corruption in most basic sense means acting or inducing
an act with the intent of improperly securing or advantage[18].
The
World Bank has defined corruption as the abuse of public office for private
gains[19].
Public office is abused for private gain when an official accepts, solicits or
extorts a bribe[20].
It is also abused when private agents actively offer bribes to circumvent
public policies and processes for competitive advantage and profit[21].
In addition public office can also be abused for personal benefit even if no
bribery occurs, through patronage and nepotism, the theft of state assets or
the diversion of state revenue[22].
This definition concerned itself with public corruption, thereby ignoring
corruption in the private sector, Transparency International has defined
corruption as “the mis-use of entrusted power for private benefit[23].
“Entrusted Power” suggest power within a public office, however, in some
situations arises in primate matters.
3. CORRUPTION
LAWS IN NIGERIA
Several laws had been and are still in
existence as legal instruments to combat corruption in the country. These laws
include the Criminal Code; the Corrupt Practices and Other Related Offences Act,
2000, Economic and Financial Crimes Commission (EFCC) Act, 2004, Procurement
Act, 2007, and Money Laundering Act, 2011.
A. CRIMINAL AND PENAL CODES
A number of provisions covers corruption
in both the Criminal and Penal Codes Section 98 provides as follows:
Any person who:
a.
Being employed in the public service, and being
charged with the performance of any duty by virtue of such employment, not
being a duty touching the administration of justice, corruptly asks, receives,
or obtains or agrees or attempts to receive or obtains, any property or benefit
of any kind for himself or any other person on account of anything already done
or omitted to be done or afterwards done or omitted to be done, by him in the
discharge of the duties of his office, or
b.
Corruptly gives, confers, or procures or promises
or offers to give or confer, or to procure or attempt to procure to, upon, or
for, any person employed in the public service, or to upon, or for any other
person, any property or benefit, of any kind on account of any such act or
omission on the part of the person so employed, is guilty of a felony, and is
liable to imprisonment for seven years.
While
Sections 115-122 of the Penal Code are the provisions relating to corruption. Section
115 provides as follows:
Whoever
being or expecting to be a public servant accepts or obtains or agrees to
accept or obtain from any person for himself or for any other person any
gratification whatever pecuniary or otherwise, other than lawful remuneration,
as a motive or reward for:
a.
Doing or forbearing to do any official act; or
b.
Showing or forbearing to show in the exercise of
his official functions. Favour or disfavour to any person, or
c.
Rendering or attempting to render any service or
disservice to any person with any department of the public service or with any
public servant as such shall be punished:
a.
With imprisonment for a term which may extend to
seven years or with fine or with both;
b.
If such public servant is a public servant in the
service of the Government of Northern Nigeria or of the Government of the
Federation acting in a judicial capacity or carrying out the duties of a police
officer, with imprisonment for a term which may extend to fourteen years or
with fine or with both.
Both
the Criminal code and the Penal Code are comprehensive set of laws that are applicable
in southern and Northern Nigeria . It contains
provisions aimed at tackling corruption in the public sector. The provisions of
the criminal code are technical and complicated. The two codes prohibit both
the demand for and the receipt of bribes by public officers[24],
as well as the giving and offering of bribes to public officers[25].
The provision of the penal code are more lucid and less technical than that of
the Criminal code. Though at that time of enactment of the codes, the scope of
corruption was not as large as it is today.
Both
codes have glaring inadequacies. First, they emphasize corruption in the public
sector and failed to address corruption in the private sector and thus one is
unable to properly examine and combat the issue of corruption from a holistic
perspective because the private sector plays a significant role in the spread
of this cancer called corruption.
Secondly,
there is likelihood that charges will be brought under the wrong section of the
law. This may lead to a possibility of unmerited acquittals because the
criminal code failed to simplify the Offence of corruption[26]
and where the accused is guilty may escape punishment[27].
Finally
it failed to widen the scope of the Offence.
3. THE CONSTITUTION
The constitution also has a number of
provisions relating to corruption. The provisions include the provision under
the fundamental objectives and directive principles of state policy, the
provision for separation of powers and checks and balances; the provision for
audit of public accounts, and the provision for the code of conduct[28].
A. Fundamental Objectives and
Directing Principles of State Policy
Section 15(5) of the constitution under
the Fundamental Objectives and Directive Principles of State Policy requires
the state to abolish corrupt practices and abuse of power. Section 13 of the
constitution, all organs of the government are required to conform to, observe
and apply the provisions of the chapter on fundamental objectives and directive
principles of state policy. Item 60 (a) of the exclusive legislative list
empowers the National Assembly to make laws for the establishment and
regulations of authorities for the federation, or any part thereof, and to
promote and enforce the observance of the fundamental objectives and directives
principles contained in the constitution[29].
In A.G., Ondo State V.A.G, Federation
& 35 Ors[30],
the Ondo State Government challenged the competence of the National Assembly to
enact the corrupt practices and other related offences Act No. 5 of 2005. The
Supreme Court held that the National Assembly is empowered under item 60 (a) of
the exclusive legislative list, to create necessary legislation to establish
and regulate the ICPC for the federation (a body established to eradicate
corrupt practices in consonance with section 15 (5) of the constitution)[31].
B. Separation of Power and Checks and Balances
The doctrine of separation of power is
controlled and moderated by the twin principle of checks and balances. The
legislative checks on the Executive is the power of investigation conferred on
the legislative by the constitution Article 88 of the constitution confers on
the legislature the power to investigate, among other things, the conduct of
any person, authority, ministry or government department charged with the
responsibility of executing or administering laws enacted by the National
Assembly or disbursing or administering money appropriated or to be
appropriated by the National Assembly[32].
The purpose of the power conferred by Article 88 (1) is to enable the
legislature
a.
Make laws with respect to any
matter within its legislative competence and correct any defects in existing
laws, and
b.
Expunge corruption, inefficiency,
or waste in the execution or administration of laws within its legislative
competence and in the disbursement or administration of funds appropriated by
it.
C. THE CORRUPT PRACTICES AND OTHER RELATED
OFFENCES ACT, 2000
The first bill General Obasanjo
forwarded to the National Assembly was the Corrupt Practices and other Related Offences
Bill which became the Corrupt practices and other Related Offences Act 2000.
The act was once a subject of some controversy. The issue was whether it was
constitutional in A-G, Ondo
State
The Supreme Court held, in a unanimous
decision, that the act was constitutional[34].
The court held that since, by virtue of section 4 (2) of the 1999 constitution,
the National Assembly has the power to make laws for the Federation respecting
any matter included in the Exclusive Legislative list. The supreme court also
held some of the sections of the Act unconstitutional. It held that the power
given by section 35 of the Act to the Independent Corrupt Practices and other
Related Offences Commission to arrest and detain a person indefinitely until
the person complies with the summons, violates the provision of section 35 of
the 1999 constitution which guarantees the fundamental right to personal
liberty section 35 of the constitution provides that a person arrested for a
criminal Offence, must be charged within a reasonable time or released on bail.
Reasonable time is defined as 24 hours, provided there is a court of competent
jurisdiction within 40 kilometers radius from the place of arrest, and 48
hours, where there is no such court within that radius.
It further held that section 20 (3) of
the Act is unconstitutional because it infringes on separation of power
principles. Section 26 prescribes that prosecution of an Offence, under the
Act, be concluded and judgment delivered within 90 working days of commencing
of prosecution. It stated that it is a direct interference with the judiciary
for the national Assembly to prescribe when the court should conclude
particular matters.
This
Act recognized the power of the Independent Corrupt Practices and Related
Offences Commission (ICPC) which prohibits and prescribes punishment for
corrupt practice offences by the Act.
Section
8 (1) of the Act Provides.
Any person who corruptly
a.
Asks for, receives or obtains any property or
benefit of any kind for himself or for any other person; or
b.
Agrees or attempts to receive or obtain any
property or benefit of any kind for himself or for any other person on account
of:
i.
Anything already done or omitted to be done, or
forcing favour or disfavour already known to any person by himself in the
discharge of his official duties or in relation to any matter connected with
the functions, affairs or business of a Government department, or corporate
body or other organization or institution in which he is serving as an
official, or
ii.
Anything to be afterwards done or omitted to be
done or favour or disfavour to be afterward shown to any person, by himself in
the discharge of his official duties or in relation to any such matters as aforesaid,
is guilty of an Offence of official corruption and is liable to imprisonment
for seven (7) years.
Section
8 (2) creates the presumption of a corrupt gift against a public officer which
is similar to section 98 of the Criminal Code. The supreme court in Biobaku V
Police found that the purpose of a similar provision under the criminal code
was to address the receipt or offer of some benefit as a reward of inducement
to sway or deflect a person employed in the public service from the honest and
impartial discharge of his duties. Section 9 is an extension of liability to
the giver or promisor of a bribe punishable by seven year imprisonment while
under section 10 it is an Offence for any person to ask for bribes for himself
or for any other person on account of something done or to be done or omitted
to be done by a public servant in the discharge of his official duties.
Section
12 makes fraudulent acquisition of property an Offence. It is to prevent people
in official position from awarding to themselves or to organizations contracts
which they have substantial interest. This section is similar to section 161 of
the criminal code.
Section
13 is similar to the first paragraph of section 427 of the Criminal Code which
provides that any person to receive anything which has been obtained by means
of a felony misdemeanor, or by means of act done in a place outside Nigeria,
which is done in Nigeria, would have constituted a felony or misdemeanor, and
which is an Offence under the laws in force in the place where it was done,
provided that the person knows same to be obtained.
The
offence of making false statement or return is provided for in section 16 of
the Act and punishment prescribed is seven years imprisonment. Furthermore
section 20 of the Act is a praise worthy novelty in criminal law of Nigeria
“Without
prejudice to any sentence of imprisonment imposed under this Act, a public
officer or other person found guilty of soliciting, offering or receiving
gratification shall forfeit the gratification and pay a fine of not less than
five times the sum or value of the gratification which is subject matter of the
Offence where such gratification is capable of being valued or is of a
pecuniary nature, or ten-thousand naira, whichever is higher”.
Section
23 is of special significance as it requires any public officer to whom any
gratification is given, promised or offered, to report such transaction to the
nearest officer of the Independent Corrupt practices and other Related Offences
Commission or police officer. It also provides that any person from whom any
gratification has been solicited or obtained, o from whom an attempt has been
made to obtain such gratification shall…..at the earliest opportunity
thereafter, report such soliciting or obtaining, or attempt to obtain the
gratification” to the nearest officer of the commission or a police officer.
Under section 23 (3) provides for a punishment of more than two years and a
fine not exceeding N100,000 or both
where a person fails to comply with subsections.
(1)
and (2) of section 23.
In addition section 47 is significant as
it prevents the unjust enrichment of a person, even when the accused has not
been convicted of an Offence if the prosecution fails to meet the requisite
standard of proof or for any other reason. Section 47 provides.
1.
In any prosecution for an Offence under the Act,
the court shall make an order for the forfeiture of any property which is
proved to be the subject-matter of the Offence or to have been used in the
commission of the Offence where.
a.
The Offence is proved against the accused; or
b.
The Offence is not proved against the accused but
to court is satisfied.
i.
That the accused is not the true and lawful owner
of such property; and
1.
That no other person is entitled to the property
as a purchaser in good faith for valuable consideration.
2.
Where the Offence is proved against the accused or
the property referred to it subsection (i) has been disposed of, or cannot be
traced, the court shall order the accused to pay as a penalty a sum which is
equivalent to the amount of the gratification or is, in the opinion of the
court, the value of the gratification received by the accused, and nay such
penalty shall be recoverable as a fine.
Section
3 of the Act establishes the Independent Corrupt Practices and other Related Offences
Commission (ICPC).
There are certain features of the
Independent Corrupt Practices and other Related Offences Commission Act 2000
which makes it unique and an effective weapon in fighting corruption in Nigeria
Some of the inadequacies of the Act is
the punishment imposed for the various Offences of corruption. The punishment
is not severe enough, the maximum punishment should be life imprisonment and
leaving the judge in a position to determine whether to impose the maximum
sentence or a number of years depending on the circumstances of the case.
D. THE ECONOMIC AND FINANCIAL CRIMES
COMMISSION ACT 2004
The Economic and Financial Crimes
Commission Act which was enacted in June 2004 and repealed the 2002 Act. The
commission is proferred with powers in respect of financial and other economic
crimes and was established for the purpose of fighting crimes including Advance
Fee Fraud, Money Laundering, fraud, and bank related malpractices. Section 14
provides for offences relating to financial malpractices and provides as
follows:
A person who being an officer of a bank
or other financial institution or designated non-financial institution.
a. Fails or
neglects to secure compliance with the provisions of this Act; or
b. Fails
or neglects to secure authencity of any statement submitted pursuant to the
provisions of this Act commits an offence and is liable on conviction on
imprisonment for a term not exceeding 5 years or a fine of five hundred
thousand (N500,000) or both such
imprisonment and fine.
While
section 16 provides creates offences relating to false information. It provides
as follows:
1.
Any person who in the discharge of his duty under
the Acts gives information which is false in any material particular to a
public officer or any person who is to take decision or do any other act in
relation there to commits an offence under this Act and the onus shall be on
him to prove that he exercised due diligence to prevent the commission of the
offence having regards to the nature of his function and circumstances.
2.
The penalty for the offence under subsection (1)
of this section shall be imprisonment for a term not less than 2 years and not more than 3 years, provided
than where the offender is a public officer the penalty shall be imprisonment
for a term not less than 3 years and not more than 5 years.
Retention
of proceeds of a criminal conduct is provided for in section 17. It reads:
a.
Whether by concealment, removal from jurisdiction,
transfers to nominees or otherwise retains the control of the proceeds of an
economic or financial crimes on behalf of another person knowing that the
proceeds are as a result of criminal conduct by the principal or
b.
Knowing that any property in whole or in part,
directly or indirectly representing another person’s proceeds of an economic or
financial crime, acquires or uses that property or has possession of it,
commits an offence and is liable on conviction to imprisonment for a term not
less than 3 years or to a fine equivalent to 100 percent of the value of the
proceeds of the economic or financial crime or to both such imprisonment and
fine.
Section
18 provides offences in relation to economic and financial crimes and
penalties:
1. A
person who
a. Engages in the
acquisition, possession or use of property knowing at the time of its
acquisition, possession or use that such property was derived from any offence
under this Act;
b. Engages
in the management, organization of financing of any of the offences under this
Act;
c. Engages
in the conversion or transfer of property knowing that such property is derived
from any offence under this Act; or
d. Engages
in the concealment or disguise of the true nature, source, location,
disposition, movement rights with respect to or ownership of property knowing
that such property is derived from any offence under this Act, commits an
offence under this Act and is liable on conviction to the penalties provided in
subsection of the section
2. The
penalties for offences under subsection (1) of this section shall be
imprisonment for a term not less than two years and not exceeding three years.
The
sections relating to offences above are partly financial crimes and partly
corruption as corruption is an act done with an intent to give some advantage
inconsistent with official duty and the rights of others. The act of an
official or fiduciary person who unlawfully and wrongfully uses his station or
character to procure some benefit for himself or for another person, contrary to
duty and the rights of others. Financial crimes may be traceable to some
aspects of corruption, embezzlement, theft from public funds, abuse of public
power for extortion, abuse of discretion.
4. ASSESSMENT OF CORRUPTION LAWS
The enactment of the Independent Corrupt
Practices and Other Related Offences Act, 2000 and the Economic and Financial
Crimes Commission Act, 2004 is commendable. They are improvements on the
provisions of the Criminal Code and Penal Code on corruption. Corruption
offences are quite many and comprehensive. ICPC and EFCC have also been set up.
Some people have been punished for corruption offences. Some others have been
prosecuted while others are being prosecuted and investigated for corruption
offences.
Some
credit must be given to EFCC as it has been able to secure 117 convictions out
of 533 cases it filed in courts in 2013 and has got 1000 convictions in ten
years. Examples of such are ex-bank chiefs, such as former CEO of Oceanic
International Bank, Mrs. Cecilia Ibru who got an 18-month jail term, the former
Edo State Governor who was convicted and was fined N3.5million, the former Governor of Bayelsa State Depreye
Alamieyeseigha was convicted and sentenced to two years in person, two Pastors,
Pastor Glory Abrefera and Reverend Vincent Okpogo were convicted and sentenced
to 10 years imprisonment over illegal banking, e.t.c.
There are still a long list of yet to be
concluded or abandoned cases still abound. One is also not comfortable with the
rather shoddy handing of the N40billion
cases against former speaker, Dimeji Bankole and his deputy, Bayero Nafada,
which led to the Federal High Court to dismiss the charges against them.
Another is the Halliburton Scandal, the United States
Some of the shortcomings of the EFCC Act
is that the punishment imposed for the various Offences of corruption are far
from severe as the maximum punishment should be life imprisonment. The EFCC has
had it tough prosecuting cases against elected government officials than others
(political appointee, CEO of Banks and Foreigners) judging by the various cases
prosecuted.
However, corruption offences are still
being committed by very many people, rich and poor, government and private
workers. Most of the laws are aimed at public officers or officials. Some
reasons which are responsible for continuous thriving of corruption include
poverty, unemployment, poor and delayed remuneration of public officers, family
pressures, favouritism, greed, get-rich-quick attitude, materialism and lack of
patriotism or love for the country[39].
Other reasons for failure to reduce or eradicate corruption offences are
corruption itself, lack of effective enforcement by law enforcement agents,
including ICPC and EFCC, lack of sufficient prosecution and the failure of the
courts to be fast and firm or tough when trying corruption offences.
5. CORRUPTION LAWS IN OTHER JURISDICTIONS
(a) United Kingdom
The
Bribery Act, 2010 is the main anti-corruption legislation in the United Kingdom
(U.K). The objective of the Act is to provide modern legislation, that modern
legislation that effectively deals with the increasingly sophisticated, cross
border use of bribery and to make the prosecution of bribery[40]
by individuals and organizations both within the United Kingdom
General Offences
Section 1 and 2 of the Act provides that
it is an Offence for a person either to (1), offer promise or give an advantage
with a view that the advantage will induce the receiver to act
Bribery of Foreign Public
Officials
Section 6 of the Act provide for a
discrete Offence of bribing a foreign public official and public international
organization.
Section 7 of the Act introduces a new Offence
that applies to commercial organizations that fail to prevent bribery. It
creates a strict liability Offence for commercial organizations failing to
prevent a bribe being paid for or on their behalf by an associated person. It
applies to United Kingdom
corporations and partnership as well as foreign corporations and partnerships
performing any part of their business in UK
The Act imposes vicarious liability on
the company for acts of any employee, agent or subsidiary. It makes it
considerably easier for the serious fraud office to prosecute the company[42].
There is however, a defence in the Act if the commercial organization can show
it has in place adequate internal compliance programs to prevent bribery. The
secretary of the state is required by the Act to produce guidance as to what
will be recognized as “adequate procedure” while the guidance is set to provide
companies with information on how to go about establishing a true
anti-corruption culture.
The Serious Fraud Office strategy of
dealing with corporate corruption is also the system of self-reporting.
Companies are encouraged to come forward and make full disclosure of events in
which corruption may be suspected.
Penalties
An individual convicted under the Act
will face a maximum of 10 years imprisonment and or a fine of £5000 (£1000 in Scotland
(b) South Africa
The Prevention and Combating of Corrupt
Activities Act, 2004 (PRECCA) According to the Act, the general crime of
corruption happens when someone (A) gives (or offers to give) someone in a
position of power (B) something to use their power, illegality and unfairly,
for the advantage of A (or someone not directly involved
Special Offences
This are provided for in sections 4 to
16, the Act and they are:
1.
Offences involving contracts, it
is a crime for anyone to accept gratification to influence who gets a contract.
2.
Offences involving a public official,
if anyone in the private sector offers a public official any gratification to
give them a benefit they will be guilty of corruption.
3.
Offences that involve members of
legislative bodies, it is an Offence to offer any member of a legislative
authority any gratification to act in an illegal or biased manner.
4.
Offences relating to judicial
officers, it is an Offence to offer a magistrate a judge any gratification,
including money to deceive a case in a certain way, it is also an offence for a
judicial officer to accept any gratification to violate any duty or abuse
his/her position of authority.
5.
Offences that involve tenders; it
is an Offence to offer or accept gratification in order to influence the award
of a tender.
6.
Crimes that involve corruption
regarding foreign officials, it is an Offence for any business to attempt to
duly influence an official in a foreign country
7.
Offences by any party to an
employment relationship, it is an Offence for any party in an employment
relationship to give or receive any unauthorized gratification in respect of
that party doing any act in the scope of the party’s employment relationship.
Extraterritorial
Jurisdiction
The Act also makes provision for
extraterritorial jurisdiction this means that even if an act of corruption was
committed outside South Africa ,
a court in South Africa South Africa ,
or must be a corporate incorporated in South Africa
Other Crimes
Apart from the most common crimes listed
above there are certain other crimes covered by the Act. They include
1.
Offering money or favors to
police or prosecutor to drop the case.
2.
Interfering with an investigation
into corruption.
3.
Assisting a person involved in
corruption, either during the act itself, or afterwards.
Reporting
corruption under Precea section 34 of the Act requires all people in positions
of authority in both the public and private sector to report corruption of
R100000 more to the police. Failure to report corruption is a criminal Offence
while a member of the public or are employed in the public sector, should
report to the police or the public protector. If the person is employed in the
public sector such a person must report to an appropriate person in authority,
such as the police or a more senior staff member.
Penalties
The Act imposes penalties for persons
convicted of corrupt practices. They are provided for in section 26. Hefty
prison sentences can be imposed including fines and the guilty person may also
be denied future jobs from the government.
If a person is convicted in the High
court, the guilty party can receive life imprisonment while convicted in a regional
magistrates court, he can receive a sentence of up to 8 years in prison and
finally if convicted in a district magistrate court, the guilty party can
receive up to five years imprisonment. There are other law that combat
corruption in South Africa apart from the Prevention and Combating of Corrupt
Activities Act, 2001 (PRECCA) These include Competition Act, 2002; Prevention of
Organized Crimes Act, 2010; Protected Disclosures Act, 2000; Public Finance
Management Act, and Regulation 1999; Municipal Finance Management Act, and Regulations
2003; Executive Members Ethics’ Act, 1998 and; Witness Protection Act, 2000.
(c) India
India
Penal Code, 1860 is the oldest legislation enacted to combat corruption in India
(d) Some other countries
7. CONCLUSION AND RECOMMENDATIONS
Corruption is the bane of the Nigerian
society. It is a clog in the realization of human rights including
socio-economic rights. It makes the resources and property of the state to be
personalized and privatized and thus depriving the people of their fair share
of public property and services. It retards development and undermines trust
and confidence which are necessary for upholding and development of sustainable
economic and social order.
In appraising corruption offences in Nigeria , one of the findings is that Nigeria
It is recommended that offences in the
EFCC Act should be harmonized with those in the Corrupt Practices and Other
Related Offences Act (ICPC, Act). Secondly, the ICPC and EFCC should be merged
or joined together as in Kenya
There is the need to strengthen the
enforcement machinery contained in the principal legislations dealing with
corruption in the country. The government also needs to embark on systematic
enlightenment campaign to make the citizenry realize the need to flee from this
wholly practices of giving bribes to public and private officials.
Furthermore, another weapon that can
fight against corruption is improvement of socio-political and economic life.
The multiplying effects of this improvement will reduce the tendency of public
servants to demand and take bribes and get involved in corrupt practices.
The current pattern of prosecution of
the EFCC, where EFCC slammed 120 court charges on a person accused of being
corrupt while in public office and none of the charges can be established,
should be replaced with an approach which is multifaceted, multi-disciplinary
and knowledge-driven, an approach that would assist all institutions of
government in re-establishing norms and standards of governance, assists the
public, NGOs and even the legislature in monitoring of compliance with the
standards, help in testing social order especially in politics.
The ICPC and the EFCC should explore
international technical co-operation on corruption in order to develop
mechanism that would help Nigeria
The judiciary also has a major role to
play by putting an end to prolongement of Cases “which is called “Frivolous” as
in the case of Orji Uzo Kalu, (former Governor of Abia State), James Obanefe
Ibori (former Governor of Delta State).
It is recommended that the provisions
relating to convictions are amended to life imprisonment or a maximum of ten
years imprisonment as is done in United Kingdom ,
South Africa and India
In addition, a new offence that applies
to commercial organizations that fail to prevent bribery should be included in
our laws as this has been done in the United Kingdom
Finally, to assure a permanent victory
against corruption in the nation, the participation and dedication of all and
sundry in the fight against corruption cancer will go a long way to reducing corruption
to the barest minimum in Nigeria
[1] United
Nations office on Drugs and Crime, the Global Programme against corruption: UN
Anti-Corruption Toolkit, Article 1, at http://www.Unodeorg/pdf/crime/corruption/toolkit/corruption-unarticorruption
toolkit Sept o4, pdf, last accessed 10.05: 2014
[2] The
meaning of the term has also been the subject of discussion among many
political scientists. See for example. A.A. Rogow & H.D. Lasswell: Power,
Corruption & Rectitude, Englewood
[3] The
former, defined as that which “pervades the highest levels of national
government, leading to a broad erosion of confidence in good governance, the
rule of law and economic stability”, while the latter is defined as that which
“involves the exchange of very small amounts of money, the granting of more
favours by those seeking very small amounts of money, he granting of minor favours
by those seeking preferential treatment of the employment of friends and
relatives in minor positions”.
[4]
Interchangeably used with bribery, former is described as “the offering or
paying of bribe”, while the latter is described as “the receiving of such
bribe. These same terms were used by the European criminal law Convention on
corruption. See European treaty series CET No. 173, Articles 2 and 3 thereof.
[5]
Described as “the bestowing of a benefit in order to unduly influence an action
or decision, “the toolkit asserts that it is “probably the most common form of
corruption known”. Many categories of bribery are listed as follows: influence
peddling; offering or receiving improper gifts, bribery to avoid liability for
taxes or other costs; bribery in support of unfair competition; private sector
bribery, and bribery to obtain confidential or “inside” information
[6] These
“involve the taking or conversion of money, property of valuable items by an
individual who is not entitled to them, but by virtue of his or her position or
employment, have access to them,”
[7]
According to the toolkit, “whereas bribery involves the use of payments or
other positive incentives, extortion relies on coercion, such as the use or
threat of violence or the expose of damaging information to induce
cooperation”.
[8] This is
the exercise of discretion in favour of someone to the detriment of others, for
personal gain, especially where there is competition e.g. bids and contract
awards.
[9] These
are also described as involving ‘abuses of discretion, not for self-interest,
but there the interests of someone involved is at stake, either through
membership of a family political party, tribe, religious or ethnic group.
[10] The
toolkit does not define this one but merely states that in most cases of
embezzlement, theft or fraud, the individual involved is merely yielding to
temptation that already exists in circumstances in which his personal interest
conflicts with that of his responsibility to act in the best interest of the
state or that of his employer”.
[11]
Described as “a donation made with the intention or expectation that the party
will, once in office, favour the interests of the donor over the interests of
the public”.
[13] S.S. N.
Iwe, Social historical issues in Nigeria
[14] See the
observations of Professor Taiwo Osipitan and Oyelowo Oyeno to this effect in
their paper “structuring measures against corruption for sustainable
development
[15] (1951)
20 N.L.R. 30
[16] .Lateef
Adegbite, Towards the Evolution of a Corrupt Free Society; “The Role and Duties
of the citizenry, in PERSPECTIVE ON CORRUPTION AND OTHER ECONOMIC CRIMES IN
NIGERIA ‘Bola Ajibola et al eds., 19991)
[17] Ibid
[18] Ibid
[19] The
WORLD BANK, HELPING COUNTRIES COMBAT CORRUPTION. THE ROLE OF THE WORLD BANK 8-9
(1997) available at http://www/worldbank.org/public
sector/anti-corrupt/corruption. Pdf. See also Problems of CORRUPTION IN NIGERIA
4-5 (Ignatius Angua et al eds, Lagos Instituteof Advanced Legal Studies, 2002
(quoting the World Bank Definition).
[20] Ibid
[21] ibid
[22] Ibid
[23] JEREMY
POPTE, II SOURCE BOOK 2000, CONFRONTING CORRUPTION; THE ELEMENTS OF A NATIONAL
INTEGRITY SYSTEM B (2000); available at http://w.w.w.transparency.org/
content download/2439/14493/sourcebook.pdf.zip.
[24]5.99,
101-103 crimanl code, Act Cap C 38, LFN 2004, 5.115-122 Penal Code
[25] 5.98
Criminal Code Act, 5. 115-122.
[26] Ibid
[27] The
court Observed in Archive Commission of Police
[28] Art
4-12, 13-24, 85-172, 5th Schedule Constitution of the Federal Republic
of Nigeria
Olafinsonye (2004) A.F.L.W.R (pt 198) 1 Nigeria , v. Anache (2004) 4 W.R.N.I (Nigeria
[29] Second
Schedule (Exclusive Legislative List) Item 60 (a) constitution of the Federal
Republic of Nigeria.
[30] (2002)
9 NWLR (pt 972) 222. Similar decisions were also reached in Re Chief Adembiyi
[31] A.G.,
Ondo State V. A.G., Federation & 35015 (2002) 9. N.W.L.R (Pt. 772) 222.
[33] (2002)
9 N.W.L.R. (Part 72) 222
[34] Ibid at
286-287
[35] 5.3
(14)
[36] 5.6
(a)-(f)
[37] 5.52
[38] 5.60
[39] See
some reasons given by Fogbohun, O.A and Olagunju, G.A., “International Law and
the Crisis of Corruption: Africa in Focus,” Journal of the African Institute for Comparative and International Law
(JAIL), Tanzania
[40]
Ministry of Justice, Impact Assessment of Billion Reform of the Law of Bribery,
available at http://w.w.wJusticegov.UK/downloads/legislation/billa-acts/bribery-billpdf.
last visited May 14, 2014.
[41]
Christopher R. Yukins Comparative Effects in Fighting Corruption in
Procurement: Corporate Compliance. A case study in convergence (Paper delivered
at the International public procurement Forum II, Benjin , China
[42] Vivian
Robinson, General Counsel, SFO, Speech at Breakfast Seminar with Grant. Thornto
(Nov 10, 2009) available at http://www.SFO.gov.UK
about us/our-views/other speeches/speeches-2009/bribery-bill
anti-corruption-vivian-robinson-qe-aspx
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