An Examination of Corruption Under the Nigerian Criminal Law
CHAPTER ONE
OBJECTIVES OF THE STUDY
The main objective of the study is to examine corruption under the Nigerian criminal law.
The specific objectives are:
- To examine the legal and institutional framework for anti corruption crusade in Nigeria.
- To highlight the merits and demerits.
- To highlight challenges and to proffer some recommendations.
CHAPTER TWO
CONCEPTUAL ANALYSIS OF TERMS
INTRODUCTION
Corruption is dangerous and detrimental to the systemic existence of any society. The upsurge of corruption in Nigeria in recent times is disturbing, that it is common belief that corruption is endemic in all facets of Nigerian society. It seems the menace has defied all treatment and the damages it has done to the national life cannot be qualified. However if corruption is not checked, it will continue to be detrimental to the social, cultural, economic and political foundations of the country, as well as her economic and social developments and efforts to eradicate poverty.
THE MEANING OF CORRUPTION
There is no comprehensive and universally accepted definition of corruption because what seems corrupt in one society may not be necessarily be perceived in another. Though there have been different attempts to define it, there is no precise, clear definition that can be applied to all forms, types and degrees.
Black‟s law dictionary defines corruption as the act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary‟s 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.[1] When the negotiations of the United Nations Convention against Corruption began in 2002, one option under consideration was to avoid the problem of defining corruption by simply listing a whole series of specific types or acts of corruption. The United Nations has adopted a descriptive approach and criminalization of the act to describe what act is corruption. The United Nations therefore highlighted the acts to include embezzlement, misappropriation or other diversion of property by a public official, bribery, illicit enrichment, abuse of office, and laundering of proceeds of crime.[2] For example Article 15 states: Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
a) The promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official for himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duty.
Also Article 20 states:
Subject to its constitution and the fundamental principles of its legal system, each state party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income. However, Osita Nnamani Ogbu defines corruption as an abuse of position or inducement of an abuse of position for an undeserved benefit, advantage or relief.[3] He said that corruption in the widest sense connotes the perversion of anything from its original state of purity, a kind of infection or infected condition. Corruption may involve cash or economic benefit, power or influence, or even less-tangible interest.[4]
Transparency International defines corruption as the abuse of entrusted power for private gain.26 However the World Bank defined corruption as the abuse of public office for private gain.[5] The law dictionary defines corruption as 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 or the rights of others.[6]
The Penal Code and Criminal Code did not provide a definition for corruption. But the Corrupt Practices and other Related Offences Act, defines corrupt act to include bribery, fraud and other related offences.[7]
However, in Biobaku v. Police30, 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. However, the researcher defines corruption as the misuse of entrusted resources for personal benefit.
CHAPTER THREE
LEGAL FRAMEWORK FOR COMBATING CORRUPTION IN NIGERIA
INTRODUCTION
Nigeria has a legal framework to tackle corruption, which, unfortunately, seems to come into existence or go through changes during every change of government. However, process seems to little or no effect on the fight against corruption in the public sector.
This chapter will analyse some legal framework for combating corruption in Nigeria. This framework include; the Penal and Criminal Codes, Public
Auditing, Due Process, Extractive Industries Transparency Initiatives and Presidential Pardon on Corrupt Public Officers and its effects on combating corruption in Nigeria . The analysis will cover purpose and workings of the framework, and extend of the success and failures of the framework. Such problems include vague legislation, lack of organisation, lack of enough funds, and delay process due to bureaucracy. It will be shown how such issues lead to lack of curbing of corruption in the public sector.
PENAL and CRIMINAL CODES
Both the Penal Code and Criminal Code, which are comprehensive, set out laws that apply in Southern and Northern Nigeria, which contain provisions that aimed at tackling corruption in the public sector. The two codes prohibit both the demand for and the receipt of bribes by public officers, as well as giving and offering bribes to public officers.
The Criminal Code provides for the offences of bribery and extortion. The offence of bribery is committed when:
Any public official who corruptly asks for, receives or obtains any property or benefit of any kind for himself or any other person, on account of anything done or omitted, or any favour and disfavour already shown 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, public body or other organisation or institution in which he is serving as a public official,…….[1]
While the offence of extortion was provided as follows:
Any person, who, with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.
CHAPTER FOUR
THE INSTITUTIONAL FRAMEWORK FOR COMBATING
CORRUPTION IN NIGERIA
INTRODUCTION
Despite the investments made by the Nigerian government to fight against corruption in the public sector, such efforts are yet to deliver on the objective of effectively preventing and combating corruption in the management of public resources and public affairs. A key challenge affecting the fight against corruption in Nigeria is the location of anti-corruption functions within multiple and operationally diverse institutions, which despite their closely related and even overlapping mandates have limited interface and cooperation and seldom coordinate policies and operations. Despite all efforts, Nigeria continues to fall short of the standards and requirements of an effective anti-corruption regime as embodied in regional and global anti-corruption conventions.
This chapter will focus on the institutional mechanism for combating corruption in Nigeria. These institutional mechanisms include the Code of Conduct
Bureau, Code of Conduct Tribunal, ICPC, EFCC, the Nigerian Police and Public Complaints Commission. Furthermore, the chapter will analyse the nature and scope of the above mechanisms with the aim to examine to what extent they have been successful and to examine what prevents them from being effective in combating corruption in the public sector.
JUDICIARY
Code of Conduct Bureau
The Code of Conduct Bureau was established in 1989 under the military regime as the chief guardian of public morality and accountability among public officials. The Code of Conduct Bureau is an institution of monitoring and checking the behaviours of public office holders. The Code of Conduct Bureau and Tribunal Act give the Bureau the mandate to: “establish and maintain a high standard of morality in the conduct of Government business and to ensure that the action and behaviour of public office holders conform to the highest standards of public morality and accountability”. [1]
In Asogwa v. Chukwu[2], the court stated that politicians, civil or public servants are public officers only for the purpose of the Code of Conduct Bureau. However, in Sharika & Sons LTD v. The Governor of Kaduna State & Ors[3], the court held that public officers are not limited to human beings or persons sued in their personal names but also include an artificial person, that is public bodies, or body corporate, or incorporate statutory bodies or persons.
The Code of Conduct Bureau is the Federal Executive Body established under section 153 of the Constitution of the Federal Republic of Nigeria, 1999. It is an Extra-Ministerial department which function under the presidency. The bureau has four departments which are asset declaration, investigation and monitoring, education and advisory service and administration and finance.
CHAPTER FIVE
SUMMARY AND CONCLUSION
SUMMARY
It is clear from the above that corruption in the public sector in Nigeria is not something new and it has become so entrenched in the public sector that it is hard to find someone that has not being involved one way or the other. It is most unfortunate that the effects of corruption are felt most by those who are less involved in the activity, and the effects increase at an alarming rate each day. It is unfortunate that perennial issue such as bureaucracy, lack of resources and proper training are still factors to prevent the fight against corruption. Nigeria being a member of the international community tends to things in the first instance that appear that it is committed to playing its role in fighting corruption, at least on paper it is, but unfortunately the opposite tends to be the reality. No wonder Nigeria for the last decades tends to be always among the most corrupt nations in the world according to Transparency International.[1] But those in charge especially those at the top of society tend to be the worst offenders, leading by example with impunity and no shame. What do they expect from the future generation? That is why it appears, if not a fore gone conclusion that the future seems bleak for the country with so much abundant resources; a country that recently surpass South Africa as the biggest economy in Africa.[2] But it may be asked where has all that wealth gone to? The answer is that it has not much or any impact on the lives of most of the people of the country, but had rather stayed with those most opportune to have ostentatious lifestyles while the rest suffer extreme poverty and lack security. However, the challenges encountered during the research are lack of funding and accessibility to the institutions for curbing corruption.
However, the research concludes that with the introduction of multi legal and diverse institutions there are improvements in combating corruption. But unfortunately the impact of corruption is so devastating that make the improvements insignificant. Therefore, the tools to tackle corruption are ineffective and there are limitations in the legal regime to combat corruption in the public service.
FINDINGS
Based on the above discussion, the researcher made the following findings:
- There is major disconnection between the legal regime for combating corrupt practices in the public service and the people it is suppose to serve.
- Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 provides immunity to some members of the public service.
- Internal checks to prevent corrupt practices and motivate workers in the public service have failed.
However, the solution to the above is to provide legal regime that take into account the religious and customs of the people of the country. It could be observed that in countries that have low rate of corruption, enact laws that suit them or style them in such a way that suits them. Based on the above findings the researcher made the following recommendations:
- The government should deal with the issue of accessibility. What the researcher means by accessibility is for everyone to have access to those in power, especially those at behest of authority. Those in power cannot discern the needs of the people without accessibility, not to talk about addressing such issues.
- The immunity clause under section 308 of the Constitution of the Federal Republic of Nigeria, 1999 should be repealed because it precludes proceedings against some members of the public service.
- There should be better system to check those is authority, because it appears that virtually every person in employment in the public service behaves as he/she pleases to the detriment of society. Here the government could employ spies to check on workers in the public service. This form of supervision would be a motivating factor in motivating individuals to be honest in their work.
References
- Abass, A. Protecting Human Security in Africa. Oxford University Press. (2010).
- Adedijji, B.O. Deeper Insight into Nigeria’s Public Administration. Author House. (2013).
- Adeh, I. Corruption and Environmental Law: The Case of the Niger Delta. Lit Verlag Munster, (2010).
- Adelugba, D. and Ujomu, P.O. Rethinking Security in Nigeria: Conceptual Issues in the Quest for Social Order and National Integration. African Books Collective. (2008).
- Black’s Law Dictionary, Ninth Edition, West, Minneapolis, (2009).
- Campbell, John. Nigeria: Dancing on the Brink. Rowan and Littlefield Publishers. (2010).
- Esiemokhai, E.O. Commentaries on Contemporary Nigerian Politics. Author House, (2013).
- Falola, T and Heaton, M. A History of Nigeria. Cambridge University Press.(2008).