HISTORY

Corruption has eaten deep into all aspect of our lives, the custodians of our morals as a country
has been seriously affected by this cancer. It has reached a stupendous extent and is a full blown
cancer in Nigeria.

The corruption and other related offences act 2000, brought about a fresh breath of hope and
healing to the nation in the fight against corruption and other financial crimes as it established
the independent corrupt practice and other related offences commission charged with the
mandate of prohibiting and prescribing punishment for corrupt practices.

INTRODUCTION

Corruption happens when one abuses power entrusted to them for personal gain. This misuse of
power erodes the trust between two or more parties and makes a democracy weak. Not only that,
but corruption can also hinder the economic growth of a nation and aggravate poverty and
inequality. It is essential to understand how corruption works to be exposed and the corrupt can
be held responsible for creating a corrupt system.

In December 2009, a Federal High Court in Asaba, Delta State discharged and acquitted James
Onanefe Ibori of all 170 charges of corruption brought by the Economic and Financial Crimes
Commission (EFCC). Two years later he pled guilty in a Southwark Crown Court to 10 (ten)
counts of fraud, money laundering and corruption. 2 The mind boggling questions remain; how
did the justice system in Nigeria get it so wrong? Why is it that the Nigerian anticorruption
prosecutors always seem to get it wrong with the investigation, arrest and the prosecution of such
crimes? Corruption is the scourge of most underdeveloped, developing and to a considerable
extent, the so called developed countries. The outright misappropriation, conversion, diversion
and theft of public funds and resources, has left Nigeria with a damaged reputation and a
negative perception of being a mismanaged and dysfunctional country. It remains a mystery that
Nigeria, the world's largest exporter of crude oil and a country with many natural resources still
has over 70 percent of its population living below the poverty line as result of corruption and
economic mismanagement.
Many Nigerians seem to have accepted corruption as a way of life; it is now entrenched and
embedded in the very fibre of the nation's being. In the midst of the hardship engendered by
corruption and mismanagement of the nation's resources, the correlation between corruption and
underdevelopment is rarely made by the citizenry and this makes the impending anticorruption
fight even more difficult to tackle because most see it as a necessary evil. Corruption is a gross
violation of citizens' human rights and needs to be treated as such

What is corrupt practice¬

This refer to the receiving, asking for or giving any gratification to induce a person to do a favor
with a corrupt intent. Gratification in this sense could mean money, sexual favors, properties,
promises, service and so on. Whereas favors could come in form such as seeking confidential
information, leniency, special privileges, contract etc.

What is Corruption?

Corruption is deceitful behavior that people in positions of power exhibit for personal gain. It is
most commonly seen amongst government officials or managers. There are different forms of
corruption, including bribery, embezzlement, extortion, networking, under-the-table transactions,
manipulation of the election result, money laundering, and more.

If we look at the finance world, we see many investment managers that run a Ponzi scheme
(investment fraud). This is a form of corruption. Similarly, other circumstances can be labelled
as corrupt. Professionals belonging to the financial services industry, like the chartered financial
analysts, have to follow a specific code of ethics that helps them avoid situations that can lead to
a conflict of interest.

There are different penalties one may face if found guilty of corruption. They can be fined,
imprisoned and suffer a loss of reputation. Apart from personal effects, the organization can also
have a negative impact because of corruption that may be long-lasting.

Many banks have suffered due to engaging in corruption by laundering money, rigging the
foreign exchange market, and more. When prominent names are involved in corruption, the
media covers the case, which results in a damaged reputation of the individual or organization
involved. If it is a renowned business, they lose customers and, ultimately, sales.

To limit this damage and earn back the trust, they carry out an extensive public relations
campaign. To ensure it is implemented well, valuable resources like time and money are utilized
extensively. As a result, the company has to face even more financial losses. If gone unchecked,
corruption will keep rising in the community, which will result in increased criminal activities
and organized crimes. Different steps can help in managing corruption and bringing it down.
Education is one of the most critical steps. It can help in reinforcing the correct business
practices. This way, people will know how to identify corruption. Mandatory education courses
like anti-money laundering must be introduced. The senior employees in the management
department must lead by example and cultivate an open and transparent culture. Moreover,
accountability mechanisms can also help in curbing corruption. It will help in strengthening the
ethical culture that will promote ethical behavior by holding people responsible for violating the
norms. Thus, a robust control environment can reduce it significantly. Furthermore, it can be
easier to reduce corruption if reporting it becomes simple. Anyone must have the right to report
it freely without any fear, whether an employee, customer, manager or even a supplier. Another
vital factor must be running a meticulous background check on the individual or organization
before putting them in a position of power.

OVERVIEW OF THE INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES

COMMISSION ACT 2000

This is a general overview of the sections of the Independents Corrupt Practices and other
Related Offences Commission Act and their provisions. The short title and commencement:
Section 1 cites the act as the "Corrupt Practices and Other Related Offences Act 2000" and came
into force on the 13th day of June, 2000. The 1CPC Act 2000 is not retroactive thus offences
committed before this date cannot be prosecuted under it. The Act seeks to prohibit and prescribe
punishment for corrupt practices and other related offences. Section 2 deals with the
interpretation of certain words used in the Act such as agent, corruption, dealing, false pretense,
gratification, public officer, official, amongst others. The Act defines Corruption "to include
bribery, fraud and other related Offences Public Officer" means a person employed or engaged in
any capacity in the public service of the Federation, State or Local Government, public
corporations or private company wholly or jointly floated by any government or its agency
including the subsidiary of any such company whether located within or outside Nigeria and
includes. Judicial officers serving in Magistrate, Area or Customary courts or Tribunal. "An
official" means any director, functionary, officer, agent, servant, privy or employee serving in
any capacity whatsoever in the public service or other public body, or in any private
organization, corporate body, political party, 1nstitution, or other employment, whether under a
contract of services or contract for services or otherwise, and whether in an executive capacity or
not.

Section 3(1) establishes the INDEPENDENT CORRUPT PRACTICES AND OTHER

RELATED OFFENCES COMMISSION (ICPC), (hereinafter referred to as "the
Commission) as an independent statutory body vested with the implementation on of the
provisions of the Act. Section 3(3): The Commission comprises a Chairman and twelve other
Members, two of who come from each of the six geo-political zones of the country. Section
3(14) on the Independence of the Commission: The Commission in the discharge of its functions
under the Act is not subject to the direction or control of any other person or authority. Section
5(1) of the Act confers on an officer of the Commission when investigating or prosecuting a case
of corruption, all the powers and immunities of a Police officer under the Police Act and any
other laws conferring power on the Police or law enforcement agents. Section 6 (a) - (f): Duties
of the Commission include:

a) To receive and investigate complaints from members of the public on allegations of corrupt
practices and in appropriate cases prosecute the offenders.

b) examine the practices, systems and procedures of public b0dies and where such systems aid
corruption, direct and supervise their review.

C) To instruct, advise and assist any officer, agency or parastatal on ways by which fraud or
corruption may be eliminated or minimized by them.

d) To advise heads of public bodies of any changes in practices, systems or procedures

compatible with the effective discharge of the duties of the public bodies to reduce the likelihood
or incidence of bribery, corruption and related offences.
e) To educate the public on and against bribery, corruption and related offences. To enlist and
foster public support in combating corruption. Section 8 prohibits demand, receipt for or
agreeing to receive gratification for one's self or another on account of any past/future official
action Attracts a 7 years’ imprisonment. Section 9 prohibits offer or promise of offer of
gratification to a public officer or another for any past or future act by a public officer: Attracts
7years imprisonment. Section 10 prohibits demand, receipt for or agreeing to receive
gratification for self or another on account of past/future acts by a public officer: Attracts 7
years’ imprisonment. Section 12 prohibits use of office as public officer to acquire direct interest
in contract, agreement or investment emanating from his office: Attracts years’ imprisonment.
Section 16 prohibits making of false statement or returns by any person. Charged with the
receipt, custody or management of public revenue or property Attracts7 years imprisonment
Section 19 prohibits a public officer from using his office/position to counter corrupt or an unfair
advantage on himself, relation, associate or another public officer: Attracts 5 years’
imprisonment Section 22(3) prohibits the inflation of cost of goods or services beyond the
market rate or professional standards: Attracts 7 years’ imprisonment and a fine of NI Million.
Section 22(4) prohibits the award of contract by a public officer without Duagetary provision,
approval and cash backing: Attracts a jail term of three years and a fine of N100, 000. Section
22(5) prohibits transfer of money from one project or service to another without requisite
approval: Punishable with one-year jail term or a fine of N 50,000. Section 23(3) criminalizes
failure to report bribery transaction to the Police or ICPC officer: Attracts 2 years’ imprisonment
or a fine of N100, 000 or both. S.26 (2), S. 61 (3) provides for specially designated Judges of the
High Court to try only corruption cases. Section 27(1) Power of ICPC to receive any report in
written or oral form. Section 27(3) empowers ICPC to investigate report or information
otherwise received by its officer. Information from other Sources acceptable. Section 28(1)
Power of any officer of ICPC conducting investigation to Order any person to appear before him
for examination and to produce document etc. (3months Imprisonment for failure). Section 29
Power of 1CPC to issue Summon inviting any Suspect or any Other person for the purpose of
aiding investigation. It is an offence to refuse to sign a Summon under the Act. Section 42(0)
provides that: 'Every offence under this Act shall be a bailable offence the purpose of the
Criminal Procedure Act or Code', subject to reasonable surety with bond. Section 46: Where the
Chairman of the Commission is satisfied that any property which is the subject-matter of an
offence of corruption is held Outside Nigeria, he can make an application prohibiting the person
in whose name it is held from dealing with it. Section 47: The Chairman of the Commission is
vested with the power to give notice or order for seizure of movable property including any
monetary instrument or any accretion thereto subject to investigation under the Act. Also power
is granted to the court to order forfeiture of any property, which has been proved to be the
subject matter of the offence or to have been used in the commission of the offence. Section 52:
whenever an allegation of corruption is made against the President, the Vice-President, the
Governors and their deputies, though they enjoy constitutional immunity while still in office, the
Commission can initiate the investigation of such political office holders and thereafter apply to
the Chief Justice of the Federation to authorize an Independent Counsel to investigate the
allegations of corrupt practices made against such officials. Such an Independent Counsel will
make a report of his findings to the National or State Legislatures as the case may be. The
Commission is expected to cooperate fully with the Independent counsel in the course of his
investigation. Section 53: Presumption of corrupt receipt of gratification S.60: Evidence of
Custom Inadmissible Section 64 (1-Protecti on of Informants: Information received from an
informant by an officer of the Commission as well as the source ot the information, its
circumstances, the place it was received and the identity of the informant shall not be disclosed
or ordered to be disclosed in public except to the trial judge and defence counsel in court. Section
64 (3) prescribes a jail term of 10 years plus a fine of N100, 000 for a person who comes forward
to the Commission with false information. Section 71 of the Act provides that persons convicted
of an offence under the Act can exercise their right of appeal as entrenched in the Constitution.

The ICPC is empowered by the Act to fight corruption but it cannot do the job alone. Every
citizen has a role to play and we invite you to join us in, this worthy cause.

THE LEGAL FRAMEWORK OF ANTI-CORRUPTION IN NIGERIA

Before the Obasanjo administration, there were different variations to the anticorruption
framework. There were the anti-corruption tribunals set up by past Heads of State; the War
against Indiscipline by the Buhari regime and many commissions set up in a bid to tackle
corruption crimes. Those efforts as mentioned earlier, did little or nothing to curb the plague of
corruption.
The prevalence of the 419 advanced fee fraud14 and money laundering crimes during this time
had become a constant source of national embarrassment to the government. The situation had
worsened and apart from robbing the Nigerian people of their resources, it also greatly reduced
the inflow of Foreign Direct Investments into the country. The magnitude and gravity of these
crimes also led to the establishment of the Economic and Financial Crimes Commission (EFCC),
in addition to the earlier establishment of the ICPC. 15 The EFCC became the major anti-
corruption instrument and has remained so till present times. The legal instrument supporting the
Commission is the EFCC Establishment Act 2002 and the Commission also has support from the
Presidency, the Legislature and key security and law enforcement agencies in Nigeria. The
powers of the EFCC are; to prevent, investigate, prosecute and penalise economic and financial
crimes and it is charged with the responsibility of enforcing the provisions of other laws and
regulations relating to economic and financial crimes. 16 The major laws that deal with
corruption in Nigeria are:

a. EFCC Establishment Act 2004. 17

b. Independent Corrupt Practices & Other Related Offences Act 2001

c. Advance Fee Fraud and Other Related Offences Act 200619

d. Money Laundering (Prohibition) (Amendment) Act 201220

e. Miscellaneous Offences Act21

f. Code of Conduct Act22

g. Nigerian Extractive Industries Transparency Initiative Act. 23

h. Freedom of Information Act 201124

i. Fiscal Responsibilities Act 201025

j. Penal Code Laws of Federation of Nigeria 200426

k. Criminal Code Law of Federation of Nigeria 200427

l. Banks and Other Financial Institutions (Amendment) Act 199128

m. Failed Banks (Recovery of Debts) and Financial Malpractices in Banks (Amendment) Act
1994. 29

However, this article will focus on the EFCC as it is currently the most visible and prominent
anti-corruption enforcement agency in Nigeria.

The most obvious problem of the ICPC and the EFCC, judged by their acts of omission and
commission, is that they appear to lack complete independence. The ICPC is slow to act and
cannot in the strict sense of things prosecute; while the EFCC seems more effective and can
prosecute but rarely achieves convictions. Another problem seems to be the politicization of the
EFCC. Due to the close proximity of both commissions to the Presidency, there is a tendency for
their powers to be used as tools of victimization, persecution and prosecution of perceived
enemies of whichever administration is in power. 30 Other reasons for the underperformance of
the Commission include; inefficiency of the judiciary, lack of societal cooperation, poor staff
training, plea-bargaining and systemic disorder. 31

The Chief Justice of Nigeria, Justice Mahmud Mohammed, has recently stated that the reasons
behind the high failure of the EFCC to successfully prosecute high profile corruption cases stems
in part from the numerous amount of charges tied to each individual case. The CJN stated further
that for the prosecution to be successful, the commission must call more than one witness to
testify on each count in the charge. 32 An example is the James Ibori corruption case, in which
the EFCC charged him with 170 counts of corruption and he was acquitted of all, while in the
United Kingdom he was arraigned on 23 counts of money laundering and corruption and was
convicted of 10. He also explained that the "Courts cannot carry out investigation and our
security agencies must be encouraged to carry out investigation-led arrest and not arrest-led
investigation." 33

The lack of diligent prosecution by the EFCC has led to the loss of many high profile cases. The
perpetrators of massive fraud and looting are acquitted on legal technicalities. The convictions
made by the UK Courts are an indictment on the Commission for its inability to successfully
prosecute the same charges and offences. If all or a majority of these cases are successfully
prosecuted as in the instance of UK Courts, then restitution will come to the Nigerian people
whose salaries, pension, gratuities, healthcare system, education, roads, pipe borne water,
electricity, general infrastructure and long term investments were stolen from them. 34

There are many legal issues surrounding the successful prosecution of corrupt individuals. For
instance, section 308 of the Constitution of the Federal Republic of Nigeria35 provides immunity
from prosecution for certain elected officials. This can be counter-productive in the fight against
corruption, as it mostly protects the highest looters of public funds. Most times when the corrupt
officials that are covered under the immunity clause in 308 are out of public office, it is often too
late to prosecute as evidence is lost, witnesses die or are otherwise unavailable, and the statute of
limitations can come into play.

Sentencing also seems to be disproportional in corruption cases, high profile individuals who are
convicted of corruption, seem to get little or no time in prison while low income individuals
attract heavier sentences. Too often we see headlines such as "thief gets the death sentence for
stealing N250, 000.00 and two mobile phones" while others seem to get away with more
stupendous cases of corruption. A recent example was the police pension scam of 2013 that
involved misappropriation and looting of funds totaling N32.8 billion ($165 million). The ruling
of Justice Talba of a FCT High Court in Abuja handed down a six-year jail term with the option
of N750, 000.00 ($3765) fine to John Yakubu Yusufu, one of the six persons standing trial. 36
This sentencing caused a lot of uproar and outrage, but very little seems to have changed. If
corrupt officials know that even when convicted, they have the option of paying meagre sums as
fines, then it serves as little or no deterrent to others.

What exactly is corruption?

The World Bank defines corruption as:

The abuse of public office for private gains. Public office is abused for private gain when an
official accepts, solicits or extorts a bribe. It is also abused when private agents actively offer
bribes to circumvent public policies and processes for competitive advantage and profit. 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. 39
Money Laundering (Prohibition) Act. [135]

This Act is aimed at curbing economic crimes, which by implication, includes corruption. It
makes comprehensive provisions to prohibit the laundering of the proceeds of crime or an illegal
act, and provides appropriate penalties. It expands the interpretation of financial institutions and
scope of supervision of regulatory authorities on money laundering activities, among other things
[136]. Nevertheless it is also a piece of legislation that aids the war against corruption.[137]
Money laundering is a process of intermingling the financial proceeds of criminal activity into
the legitimate financial system, with intent to conceal its origin and disguise its nature.[138]
Section 10 of the Act mandates all financial institutions and designated non-financial institutions
to disclose and report to the Economic and Financial Crimes Commission (EFCC) and the
National Drug Law Enforcement Agency (NDLEA) in writing within 7 days, any single
transaction, lodgment or transfer of funds in excess of N1, 000,000 or its equivalent in the case
of individual, and N5, 000, 000 or its equivalent in the case of body corporate. The Act also
prohibits any person or body corporate from making or accepting cash payment of a sum
exceeding N500, 000 or its equivalent in the case of an individual, or N2, 000, 000 or its
equivalent in the case of a body corporate, except in a transaction involving a financial
institution. This Act will make it difficult for a corrupt official to deposit the financial proceeds
of corruption in a bank or other financial institution.

The Act is in harmony with the provisions of article 6 of the African Union Convention on
Preventing and Combating Corruption [139], which dwells on laundering of proceeds of
corruption. The article mandates the States to adopt legislative measures to establish criminal
offences regarding among other things, the conversion, transfer or disposal of property knowing
that such is the proceeds of corruption, for the purpose of concealing or disguising the illicit
origin of the property or of helping any person to evade legal consequences of his action. [140]

Economic and Financial Crimes Commission (EFCC) Act [141]

This Act established the Economic and Financial Crimes Commission, with responsibility for the
enforcement of all economic and financial crimes laws, among other things. [142] Economic and
financial crimes are in most cases, also laced with corruption. The Economic and Financial
Crimes Commission (EFCC)
The Commission was established by the Economic and Financial Crimes Act to administer the
provisions of the Act. The Commission has the responsibility among other things, for the
investigation of all financial crimes including advance fee fraud, money laundering,
counterfeiting, illegal charge transfers, future market fraud, fraudulent encashment of negotiable
instruments, computer credit card fraud, contract scam, etc. [143] The Commission is the
coordinating agency for the enforcement of the provisions of:

the Money Laundering Act,

the Advance Fee Fraud and Other Related Act,

the Failed Banks (Recovery of Debt and Financial Malpractices in Banks) Act, as amended.

the Banks and Other Financial Institutions Act 1991, as amended;

Miscellaneous Offences Act; and

any other law or regulation relating to economic and financial crimes, including the Criminal
Code and Penal Code.

The Federal High Court or High Court of a State or of the Federal Capital Territory has
jurisdiction to try offenders under the Act.[144] The courts are to ensure that all matters brought
before them by the Commission against any person, body or authority, are conducted with
dispatch and given accelerated hearing.[145] They are to give such matters priority over other
matters pending before them.[146] All the properties of a person convicted of an offence under
the EFCC Act, and shown to be derived or acquired from such economic and financial crimes,
which is the subject matter of an interim order, shall be forfeited to the Federal Government. The
former Inspector-General of Police, Mr. Tafa Balogun, was among the casualties in the onslaught
against corruption by the EFCC. The EFCC claimed in an initial seventy-count charge, that
Balogun was into money laundering and theft of police funds. [147] Altogether, Balogun was
accused of stealing N12.8 billion. The charges were later amended and reduced to fifty counts. A
few days after the charges were amended, Balogun was again dragged before an Abuja High
Court to face a fresh ninety-two-count charge of official corruption and failure to fill assets
declaration forms. Following the enormity of the offences, the legal teams of both Balogun and
the EFCC agreed to bargain for settlement. Balogun pleaded guilty to all the charges and was
subsequently convicted and sentenced to six months’ imprisonment. He was to forfeit assets
worth several billions of naira, including real estates, publicly quoted shares and several other
investments and pay additional N4 million fines to the Federal Government. [148] Some people
have expressed the views that the six months’ term of imprisonment was not punitive enough for
the enormity of the offence. If one considers the fact that it is not hundred percent guaranteed
that EFCC would have secured a conviction, after spending so much time and money, then the
wisdom in the plea bargain would be better appreciated.

The EFCC as at January 2006, under the leadership of Mallam Nuhu Ribadu recovered over
N500 billion in cash and property from corrupt public officials and others involved in financial
crimes. [149] There are suggestions that since the former Chairman of EFCC, Mallam Nuhu
Ribadu was removed, the EFCC under Mrs. Farida Waziri, has lost its vibrant character, and has
also lost the cooperation and goodwill of the Western world. These Western countries have seen
the signals from Nigeria that it has lost interest in fighting corruption [150].

CONCLUSION

The conclusion that can be drawn from this paper is that corruption contributes directly to
underdevelopment. It could also be said that an underdeveloped country provides a festering
ground for corruption. Considering Nigeria's colonial history and the enabling systems put into
place during colonial times, the country had an unfair disadvantage and little fighting chance
when it came to corruption. In May 2015, President Muhammadu Buhari took over the affairs of
Nigeria, albeit this time as a civilian president. The anti-corruption fight has once again switched
gears and seems to have gathered some steam and faith is being cautiously restored in the anti-
corruption movement. However, to avoid the mistakes of previous regimes and administrations,
the legal framework needs to be strengthened. Issues such as judicial corruption, bad sentencing,
lack of diligent prosecution and many others need to be dealt with decisively. The EFCC needs
to thoroughly investigate before arrests are made, rather than scrambling mediocre cases together
during trial. The effects of corruption need to be amplified and citizens need to understand the
correlation between corruption and development. It is 2016 and cases are getting progressively
worse. Dasuki- Gate48 and other tales of momentous looting have shocked citizens to their core.
Oil prices have dropped significantly and the gains from the oil boom which would have
cushioned the effects of economic hardship have been looted into oblivion.

The EFCC needs to be emboldened, granted autonomy, supported and possibly have its powers
expanded. Public officials need to be held to a very high level of accountability. The Judiciary
needs to have a stronger resolve to sentence convicted looters to maximum terms allowed under
the law. Sentencing needs to be seen as a serious deterrent to would-be corrupt individuals.
Prosecuting agencies should be more diligent and charge under appropriate laws. Other
jurisdictions such as the United Kingdom, who have managed to successfully reduce incidences
of corruption, need to be emulated here in Nigeria in terms of the quality of charges framed by
prosecutors and in the apportionment of appropriate sentencing.