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A CRITICAL APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR ANTI CORRUPTION CRUSADE IN NIGERIA
This dissertation gives an appraisal of the legal regime for combating corrupt practices in the public service of the federation. The objectives of the study are to examine the legal regime for combating corrupt practices in the public service of the Federation. Highlight the merits, demerits, challenges and to proffer some recommendations.
The main problem with the legal regime to combat corruption in the public service is lack of focus on the issues that cause corruption therefore result in failure to apply the appropriate remedies to tackle corruption. Another 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. Other factors affecting the fight against corruption are lack of funding, and bureaucracy.
Furthermore, the immunity clause under section 308 of the Constitution of the Federal Republic of Nigeria precluding prosecution against some members of the public, the system to check those in authority is ineffective to supervise and be a motivating factor for individuals to be honest in their work and the constitutional safeguard for presidential pardon in insufficient to restrict the abuse of the power by the president.
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.
It is observed that the legal regime to fight corruption have failed to curb corruption in the public sector. Unfortunately, the trend is that corruption is exacerbating with the passage of time.
Nigeria despite its oil wealth has one of the largest population of poor people on the African continent.1 Corruption is however the major cause of poverty in Nigeria. Despite more than a decade of civilian democratic rule, Nigeria still faces huge governance and development challenges. Transparency International ranked Nigeria 136 with a score of 26 on its 2015 corruption perception index.2 Despite efforts made by the government for the past decade to provide a better legal and institutional framework to curb corrupt practices in the public service, there are still major issues with corruption.
Giving the way the practice of corruption has become generally accepted in Nigeria, the research may think it is because there are no laws and institutions to curb corruption. This is not the case. In fact there are several laws that proscribe corruption and institutions to curb corruption in the public sector.
The Penal and Criminal Codes both contain anti-corruption provisions. Accordingly, the law prohibit demanding and receiving of bribes by public officials. The law also penalise anyone who either gives or offers bribe to public officers. The law also prohibit the activities of agents, relatives and other close
associates of public officers to demand or receive gratification either for them or any other person.
The Constitution of the Federal Republic of Nigeria, 1999 provides for the establishment of the Code of Conduct Bureau.3 The Bureau was designed to monitor compliance with anti-corruption regulations in the code of conduct for public officers. In addition to the Nigerian Constitution, there are other laws, regulations, and initiatives that have been enacted or implemented to fight corruption. The Corrupt Practices and Other Related Offences Act led to the establishing of the Independent Corrupt Practices Commission (ICPC). The Act prohibits corruption, corrupt practices and corrupt enrichments and aims at the enthronement of probity, accountability, transparency, honesty, integrity and credibility in public life. The Act also establishes an Independent Corrupt Practices and Other Related Offences Commission charged with the responsibility of investigating and prosecuting offender under the Act.
Also, Due Process was established to commence contract award review, oversight and certification process.4 It is a mechanism that certifies for public funding only those projects that have passed the test of proper-implementation packaging. Those projects most comply with the stringent requirements of international competitive bid approach in award process.
Furthermore, there is the transparency in privatisation and market liberalisation process. The aim of which is to comply with the Extractive Industries Transparency Initiatives (EITI) and it involves the implementation of transparency in the privatisation and liberalisation of key economic sectors. Also, there is the move for transparency in the oil and gas sector, pursuant to this mandate the government will allow for checks and balances by providing information about its actions, receipts and expenditures in the oil sector.
Nigeria has made host of reforms and put into place a host of measures designed to help fight corruption in the country. But there appears to be a long way before it realise the benefits of such reforms
1.2 STATEMENT OF PROBLEM
The persistent high level of corruption in Nigeria in the public service was due to lack of enforcement legal regime. The legal regime to combat corrupt practices in the public service of the federation has failed to prevent corrupt practices. The introduction of anti corruption functions within multiple legal and diverse institutions was meant to provide an effective and efficient legal regime to combat corruption in the public service. The issue for consideration now is whether the multiple legal and diverse institutions have sufficiently covered issues to tackle corruption in the public service.
In view of the forgoing this research has formulated the following research questions:
This dissertation is relevant in view of the fact that it will educate the public on the legal regime for combating corrupt practices in public service of the Federation. The dissertation will also look at the legal and institutional requirements to find out the missing link that has prevented the curbing of corrupt practices in the public service. The effectiveness of the laws and the institutions and their limitations will also be considered.
1.4 OBJECTIVES OF THE STUDY
The objectives are:
iii) To highlight challenges and to proffer some recommendations
The proposed research will focus on legal and institutional framework for anti corruption framework in Nigeria. The research will focus on examining the multiple legal and diverse institutions to combat corruption in the public service in Nigeria. However, the limitations of the research are lack of funding and accessibility to the institutions for curbing corruption.
This research is intended to be carried out by library based research by consulting all relevant materials which include Laws of the Federation of Nigeria, judicial decisions and other materials such as text books and journals.
1.7 LITRETURE REVIEW
Oko, O5. Examined how Nigeria can use legal rules, economic reforms and changes in attitude to craft a more effective response to corruption. He argues
that democracy, promulgation of new anti-corruption law, and the establishment of an independent anticorruption agency unaccompanied by wholesale changes in attitude, social practices, and economic reform will not end corruption in a country already tottering under the burden of ethnic strife, lawlessness, and economic instability.
However, this dissertation will examine other requirements to fight corruption such as the EFCC and the Due Process which the author under review did not examine.
Ogbu, O.N.6, critically examined the legal and institutional framework for combating corruption in Nigeria before 1999, which he observed has some obvious defects. The author observed that the legal provisions are so technical and complex that in many cases persons who ought to have been found guilty were set free.
The author finally submits that the battle against corruption in Nigeria can only succeed when it is institutionalised and when there is demonstrated political will to fight corruption. Also, this dissertation will examine the Extractive Industries Transparency Initiatives and the due process as means in fighting corruption which the author failed to do.
Shola, J.O.7 engages the crucial question of to what extent has the new war against corruption has succeeded in addressing the scourge. The author also submits that while the legal and institutional anchorages of the war offer a good point of departure, they remain grossly inadequate. The author further stated that this largely explains why the war has been underproductive and caught in a deepening crisis of legitimacy.
The author furthermore submitted that what is required is the nourishing and re-envisioning of such requirements, coupled with strong political will, to challenge the structure of power that currently generate and sustain the system and establish a truly democratic development state. The author also failed to examine the Extractive Industries Transparency Initiatives as a requirement to tackle corruption which this thesis will do.
Ijeoma,I.O.8 examined Nigerian anti-corruption initiatives. The author examined the initiatives which include more accountability in the public sector, enforcement of existing anti-corruption laws, establishment of a Public Procurement Commission, the implementation of the due process mechanism the publication of information and requirement of transparency in the petroleum industry, the requirement of the market liberalisation process, and finally the requirement of transparency in the political process.
The author observed that it seems that a lot has been put in place to fight corruption but the most sweeping of them all is the Extractive Industries Transparency Initiatives.
The author concluded that even though Nigeria has taken certain steps in the right direction towards curbing corruption, more is still to be done. The author only briefly discussed the anti corruption initiatives such as the due process mechanism. This dissertation will give a more detailed examination of the initiatives such as examining the Extractive Industries Transparency Initiatives in light of the NEITI Act, 2007.
Nlerum S. Okogbule9, examined the adequacy or otherwise of the existing legal and institutional mechanisms for combating corruption, and found that the earlier statuary enactments have proved ineffective in combating corruption in contemporary Nigeria, Hence the enactment of the Corrupt and Practices and other Related Offences Act, 2000 and the Economic and Financial Crimes Commission Act, 2004, with the objective of dealing with various aspects of corruption.
Furthermore, he also found that for the process of fighting corruption to be effective, legislative measure to tackle corruption must take cognizance of the multifarious nature of the menace coupled with the requisite political will to enforce the provisions of such statutory enactments. Finally, he demonstrates
the great benefit of the use of additional legislative measures in tackling corruption. He suggests the strengthening of these mechanisms and a re-orientation of social values as the best strategy for dealing with the corruption virus in the country. The author also failed to examine the due process mechanism and the Extractive Industries Transparency Initiatives which this dissertation will do.
Moreover, Ignatius Adeh10, examined the corruption from an environmental perspective, and further restricts his examination within the Niger Delta region. However, he still went on to discuss the loopholes in the system and observed that despite the wide range regulatory provisions designed to checkmate the conducts of public officials, there is still growing corruption in the public sector. Furthermore, John Hatchard11, examined legal approaches in combating corruption. He demonstrates that Nigeria being a signatory of the African Union Convention on Preventing and Combating Corruption and the United Nations Convention against Corruption, in practice the country continues to experience problems of bad governance and the looting of state asset. He also explores how the art of persuasion can help develop the necessary political will through which to address these challenges. The author failed to examine the Extractive Industries Transparency Initiatives.
Enweremadu, D. U.12, examined the struggle against corruption in Nigeria. The author examined the failure of the ICPC to stem the tide of corruption in Nigeria since its inception. The author contends that, except the putting in place of such institutions are accompanied by a radical change in social values and practices beginning from the top, corruption may likely remain a major problem in Nigeria.
Babatunde, I.O.13, examined the impact of national legislations on corruption control in Nigeria. He observed that despite the magnitude of available anti-corruption legislation, corruption and abuse of power have been in the increase in Nigeria. He also observed that the major problems of the agencies are that they do not have enough capacity, independence and resources to adequately perform their functions. The author only briefly discussed anti corruption legislations and institutions.
Abdullahi Y.S., examined the issue of illicit enrichment involving political exposed persons, as well as the legal framework for asset recovery in Nigeria. He observed that strengthening prosecutorial and judicial capacity to achieving conviction and record successful asset recovery constitute an area of priority. He also observed that where bureaucracy is stronger than institutions for maintaining accountability, equity and justice, such a situation would facilitate
corruption. However, the author restricted his examination to the Economic and Financial Crimes Commission.14
Emmanuel, E.O., examined combating corruption in Nigeria by discussion the Economic and Financial Crimes Commission. He examined the activities of the Economic and Financial Crimes Commission and notes that corruption occurs primarily when there is a failure of established institutions and lack of capacity by these institutions to manage frameworks of social, judicial, political and economic check and balances.15
Adeleke, F.A.R. and Olayanju, O.F.16, examined the role of the judiciary in combating corruption. They discussed the factors that are necessary to assist in building an effective, vibrant and corruption free judiciary. However, they observed that the Nigerian judiciary has failed to live up to its responsibility in its role of combating corruption in the country and is even itself accused of corruption.
Paul, D.O.17, the socio-legal analysis of Nigeria‟s Corrupt Practices and Other Related Offences Act, 2000. He examined the social environment which corruption operates and points out that in the past the environment was such that anti-corruption measures were bound to fail, but concluded in optimistic vein
that the return to civilian rule is likely to have an effect in the fight against corruption.
Abubakar, K.A.18, examined the long-term legal and extra-legal recipe for Nigeria. He observed that the dilemma over cogent policies against corruption is borne out of the reality of the incessant military rules in Nigeria. He also observed that military rule lacks the basic accessories for checking administrative/executive indiscipline, lawlessness and malpractices which are usually the root of corruption in society. The author failed to examine the Extractive Industries Transparency Initiatives.
Olakunle, O.O.19, examined the extra-territorial scope of the anti-corruption legislation in Nigeria. He examined the Corrupt Practices and Other Related Offences Act, 2000. Central to the article‟s focus, is a historic examination of Nigeria‟s institutionalised corruption through the relationships between corrupt private enterprises and public officers.
Furthermore, the thematic compilation of relevant information submitted by Nigeria to the United Nations Convention against Corruption only captured the specific mandates of some of the agencies that combat corruption. However, the report did not capture the due process.20
Furthermore, report on corruption risk assessment in the Nigerian port sector puts forward specific recommendations for actions to eliminate corruption in the Nigerian port sector. The report which was conducted by United Nations Development Programme and the Maritime Anti-Corruption Network, identified some challenges which include weak internal ethics in port agencies, an under developed system for investigating complaints of demands for bribes, and no effective system for handling grievances and protecting whistle blowers. However, the report was restricted to the Nigerian port sector.21
However, even though the efforts of the above authors are to be applauded, but they seem to focus on issues of the Independent Corrupt Practices and Other Related Offences Commission and the Economic and Financial Crimes Commission. Furthermore, where they discuss other anti corruption initiatives they tend to highlight the issues therein without critical analysing them.
This however gives room for issues such as the extractive industries transparency initiatives and the due process mechanism to be critically analysed.
1.8 ORGANIZATIONAL LAYOUT
The dissertation is divided into five chapters. Chapter one provides the general background of the study highlighting the introduction of the topic, statement of
the problem, justification, objectives of the study, scope, methodology, literature review and the organizational layout.
Chapter two examines conceptual analysis of terms. Under it, an attempt to give the meaning of corruption is made. Furthermore, forms of corruption, other forms of corruption, causes and effects of corruption will be examined.
Chapter three examines legal framework for combating corruption in Nigeria. Under it, the Penal and Criminal Codes will be briefly discussed. Also, Auditor General of the Federation, Public Procurement Act and Nigeria Extractive Industries Transparency Initiatives and presidential pardon will be discussed so as to show the loopholes that prevents such legal framework from curbing corruption in the public service.
Chapter four examines the institutional framework for combating corruption in Nigeria. Under it, judiciary, ICPC, EFCC and the Nigerian Police and Public Complaints Commission will be discussed so as to show the effectiveness and otherwise of such institutions to curb corruption.
Chapter five provides the summary, conclusion, finding of the study, and recommendations to address the issues of corruption in the public service.
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