In this special edition of Focus, we continue with our special look at corruption in Africa in the context of foreign investment. In the second part of a series of four articles, we take a closer look at bribery legislation in Nigeria. In the weeks to follow, we will look at Kenya and South Africa.
It is generally recognised by Nigerians and the international community that bribery and corruption have seriously impeded the growth and development of the country since independence. The paradox is that the Nigerian Legal System is replete with legislation for preventing and combating bribery and corrupt practices. Copious legislation on the subject have been criticised in some quarters as unduly repetitive.
The laws range from the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to several anti-bribery and corruption statutes including the Criminal Code and the Penal Code with chapters on official and judicial corruption. More recently, in the year 2000, the National Assembly passed The Corrupt Practices and Other Related Offences Act 2000, into law, which established the "Independent Corrupt Practices and other Related Offences Commission" and makes receiving or offering a bribe, by or to, a public officer on account of anything already done or to be done in the discharge of his official duties a criminal offence punishable upon conviction by imprisonment for 7 (seven) years.
Perhaps, the most prominent anti-corruption legislation in Nigeria is the Economic and Financial Crimes Commission Act 2003 which established the Economic and Financial Crimes Commission (EFCC). The EFCC initially drove fear into the minds of Nigerians but under its pioneer Executive Chairman, Mr. Nuhu Ribadu, it was later criticised as being selective in the prosecution of the war against bribery and corruption. Government also sought to promote accountability in the public sector by enacting the Public Procurement Act in 2007 setting out processes and procedures for public procurement.
Forms of Bribery
Corruption in Nigeria takes different forms. Political corruption takes place when legislation and policy are tailored to benefit politicians and their friends directly or indirectly by manipulating decision-making processes, political institutions, rules of procedure or distorting the institutions of government. It could be bureaucratic or official where it is practised by public officials in government ministries or parastatals in the implementation of laws, regulations and policies. It may take the form of bribery, extortion, fraud, embezzlement, favouritism and nepotism. This kind of corruption is often encountered in daily interaction with public officials at all levels. Electoral corruption includes purchase of votes with money, bribing electoral officials and other forms of interference with the electoral process.
The ICPC seeks to combat bribery and corruption in three major ways: prevention, enforcement and education. The ICPC has powers to examine practices, systems and procedures of public entities. It also has the power to review, direct, instruct and assist officers or governmental agencies on ways of eliminating and or minimizing corruption by such officers or agencies. It has the mandate to educate and enlighten Nigerians on the untoward effects of bribery and create public awareness on the need to eliminate all forms of corruption and other related crimes. Citizens are also encouraged to report corrupt practices.
The seemingly most effective and visible agency of all the anti-corruption agencies in Nigerian is perhaps the EFCC. The current Chairman of the EFCC, Mrs. Farida Waziri, recently stated that the nation has lost over $300billion to corrupt officials since independence. Following the recent turmoil in the Nigerian banking industry, the EFCC is prosecuting several Managing and Executive Directors of the affected banks and recovered cash and property worth over N170 billion from one of them following a plea bargain. Billions of Naira were also recovered from a former Inspector-General of Police who was imprisoned for 6 (six) months. The EFCC has prosecuted several former State Governors and other public officials and recovered cash and property worth billions of Naira from some of them . Currently, the EFCC is prosecuting 55 cases against former bank CEOs, State Governors and senior government officials described as high profile.
The general perception remains that bribery and corruption probably constitute the most serious problems confronting Nigeria. In the 2010 Report published by Transparency International, Nigeria ranked a dismal 134, having a corruption perception index (or CPI) score of 2.4 points ahead of only Sierra Leone, Togo, Zimbabwe, Mauritania and Cameroon in Africa, out of 178 countries surveyed. In a 2009 Study conducted by the National Office of Statistics and the EFCC, 71% of respondents stated that corruption remains a problem in doing business in Nigeria. Many Nigerians are of the view that the problem is enforcement. The laws are there. Nigeria has enacted necessary legislation to combat the menace but the enforcement officials are poorly motivated and subject to political control by either the Attorney-General of the Federal in the case of the EFCC or the President in most other cases.
The Nigerian Police is notoriously under-funded and policemen are poorly paid. Customs officials, immigration officers, some judicial officers, civil servants, revenue officials and officers of government agencies and parastatals are generally perceived as very corrupt. For instance, there is an ongoing probe of corruption allegations made against the current Chief Justice of Nigeria by no less a person than the President of the Court of Appeal. Furthermore, several companies with headquarters or branch offices in the United States recently paid huge fines to the Governments of the United States and Nigeria for various offences particularly the bribery of Nigerian public officials. In recent times, based on the practice of plea bargains borrowed from the United States, the trend has been to seize identified assets of corrupt officials and hand them short sentences. In our view, this is not sufficient deterrent. Unfortunately, due to the absence of that strong deterrent, bribery and corruption appears to have taken over the fabric of our national life and appears to define the Nigerian persona in the international community.
Causes of Corruption
The causes of corruption include, amongst other things, great inequality in the distribution of wealth, the lure of easy oil money, the belief that political office permanently assures access to wealth and fame, perceived insincerity of government in the fight against corruption, the dilatory judicial processes and procedures plagued by endless interlocutories, degradation of general of moral values and the approbation of ill-gotten wealth by the populace.
The EFCC claims that strict adherence to the rule of law (i.e. the need to follow proper procedures in investigating and prosecuting corruption cases) and the enforcement of fundamental rights by the court stalls investigation and convictions of culprits as most are granted bail immediately after their arrest thereby affording them the opportunity to interfere with investigations. The EFCC recently lamented the grant of ex-parte and perpetual injunctions by courts in favour of accused persons which ultimately undermines the fight against bribery and corruption and urged the establishment of special courts for bribery and corruption cases.
In the final analysis, the conclusion already reached by most Nigerians is that although there is copious legislation on the subject, there remains a serious gap in enforcement due to lack of political will.
Ben Unaegbunam, ACAS Law, Nigeria in conjunction with Trinity International LLP