THE ENFORCEMENT OF ECONOMIC AND FINANCIAL CRIMES LAWS AND THE REDUCTION OF ECONOMIC AND FINANCIAL CRIMES IN NIGERIA: A FOCUS ON ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
BY
EDICHA, OJOCHIDE BLESSING PG/M.Sc./12/63197
A PROJECT REPORT SUBMITTED TO THE DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NIGERIA, NSUKKA IN PARTIAL FULFILMENT OF THE
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REQUIREMENTS FOR THE AWARD OF MASTER OF SCIENCE (M.Sc.) IN POLITICAL SCIENCE (POLITICAL ECONOMY)
DEPARTMET OF POLITICAL SCIENCE,
UNIVERSITY OF NIGERIA, NSUKKA
SUPERVISOR: PROFESSOR KEN IFESINACHI
OCTOBER, 2013
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THE ENFORCEMENT OF ECONOMIC AND FINANCIAL CRIMES LAWS AND THE REDUCTION OF ECONOMIC AND FINANCIAL CRIMES IN NIGERIA: A FOCUS ON ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
BY
EDICHA, OJOCHIDE BLESSING PG/M.Sc./12/63197
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Approval Page
This is to certify that this project report titled ‘The Enforcement of Economic and Financial Crime Laws and the Reduction of Economic and Financial Crimes in Nigeria: A Focus on Economic and Financial Crimes Commission (EFCC)’ has been examined and approved by the Department of Political Science, University of Nigeria, Nsukka, for the award of Master of Science (M.Sc.) in Political Science (Political Economy)
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PROFESSOR KEN IFESINACHI DATE
SUPERVISOR
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PROFESSOR JONAH ONUOHA Ph.D DATE
HEAD OF DEPARTMENT
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PROFESSOR C.O.T. UGWU DATE
DEAN OF FACULTY
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EXTERNAL EXAMINER DATE
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Dedication
To God Almighty
Who in His infinite Mercy granted me a Joy of actualization
And
In fond memory of late:
Miss. Esther Ojonugwa-Tete Edicha,
Even in transition your importance grows stronger; I miss you, dearly
Like the rainbow you faded quickly.
Your good deeds and memories will live forever.
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Acknowledgements
Not everyone who pushes you to the pit is an enemy; and not everyone that pulls you out is a friend, either. Anonymous
In the course of this work, prayers, supports, helps, advice, encouragements and challenges from many people served in getting it through. Usually the list is large and cannot possibly be mentioned here. However, I must as much as possible, acknowledge the contributions of those so material.
Without the Almighty God, my Creator, Enabler, Helper and Lifter, I could have done nothing (John 15:5). I am thankful to Him for keeping, sustaining and giving me life, wisdom, knowledge and all opportunities for the successful completion of the study. To Him I say “Thank You, Abba Father”.
Peace to you, Professor Ken Ifesinachi, for amiably and benevolently supervising my work. Your painstaking tolerance, efforts, direction, wisdom and encouragements aided the outcome of this study. I deeply appreciate the new insights our interactions and your constructive supervision the work. You have been “our Abraham” and bore our burden without discrimination. Live long. You will remain close to my heart, always.
Likewise, my very sincere gratitude to Dr. Herbert C. Edeh; he is more than a lecturer to me. He provided the lubricant for the smooth running of the research. His genuine support and encouragement aided the outcome of this research. I am equally indebted to Professors Jonah Onuoha, Aloysius M. Okolie and Dr Jerry Ezirim and all my lecturers for enriching my knowledge. You will always be remembered.
I am vastly indebted to my Sister, Mrs Ejura Ejiga who provided me a home and all the comfort I needed from the onset. Thank you so much, may God reward you graciously. Equally, my special thanks to Mr. Aliyu and Mr Basharu A. Faruk, (EFCC) who unconditionally accepted and gave me access to facilities at Green Pastures for the research. God bless you richly.
I am eternally indebted to my parents Mr and Mrs Edicha; siblings: Victor, Jacob and Isaiah; your prayers and support cannot be quantified. You are always there for me. May God refresh and replenish you with favours and grace, always.
Finally, my deep and wholehearted thankfulness to my friends: Judith Ogbaje, for being a true friend, always sticking closer than a brother; Rev Father Mathew Attah for reassuring thoughts and
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prayers; Yunusa Muhammed for wonderful friendship. And my most special coursemates, may God be with you.
Edicha Ojochide Blessing
Department of Political science
University of Nigeria, Nsukka.
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Abstract
Corruption is recognized as the bane of the Nigerian society as it undermines governance. The Economic and Financial Crimes Commission (EFCC) was established to mitigate the menace of economic and financial crimes in Nigeria. This was informed by the upsurge of corruption by government officials and the need to enthrone probity in governance in the country. This study therefore appraises the performance of the Economic and Financial Crimes Commission in reducing corruption in Nigeria. It examines the impact of immunity of public officeholders and the arrests and prosecution of corrupt government officials on the effective enforcement of economic and financial crime laws in Nigeria by the EFCC. It utilized the qualitative method in the collection and analysis of data; while structural functional theory served as the theoretical framework of analysis. The study demonstrated that immunity of public officeholders has not hindered the effective enforcement of economic and financial crimes laws by EFCC in Nigeria. It also revealed that arrests and prosecution of government officials by the Economic and Financial Crimes Commission (EFCC) has not reduced the incidence of corruption among government official in Nigeria. It therefore, concludes that the enforcement of the economic and financial crimes laws in Nigeria by the Economic and Financial Crimes Commission (EFCC) has not led to reduction in economic and financial crimes by public officeholders. It therefore recommends enhancing the independence of EFCC and the passage of the Special Courts (Establishment) Bill to designate specific courts to hear corruption cases to facilitate prosecution of corrupt officials.
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Contents
Title ------i
Approval ------ii
Dedication ------iii
Acknowledgements ------iv
Abstract ------vi
Contents ------vii
List of Tables ------ix
List of Figures ------ix
CHAPTER ONE: INTRODUCTION
1.1 Background of the Study - - - - - 1 1.2 Statement of the Problems - - - - - 7 1.3 Objectives of the Study - - - - - 8 1.4 Significance of the Study - - - - - 9
CHAPTER TWO: LITERATURE REVIEW
2.1 Corruption and Incidence of Corruption in Nigeria - - 11
2.2 Immunity and Political Corruption in Nigeria - - 24
2.3 Arrests and Prosecution of Corrupt Public Officials - - 28
2.4 Gap in Literature ------30
CHAPTER THREE: METHODOLOGY
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3.1 Theoretical Framework - - - - - 32
3.2 Hypotheses ------36
3.3 Research Design ------37
3.4 Methods of Data Collection - - - - - 37
3.5 Methods of Data Analysis - - - - - 39
3.6 Logical Data Framework - - - - - 40
CHAPTER FOUR: ANTI-CORRUPTION LAWS AND THE
IMMUNITY OF PUBLIC OFFICIALS IN NIGERIA
4.1 Anti-Corruption Laws in Nigeria - -- - - 44
4.2 Powers and Responsibilities of the EFCC - - - 56
4.3 Activities of EFCC since Creation - - - - 59
4.4 Immunity and Prosecution of Public Officials in Nigeria - 63
4.5 Executive Immunity under the Nigerian Constitution - 66
CHAPTER FIVE: ARRESTS AND PROSECUTION OF CORRUPT
PUBLIC OFFICIALS IN NIGERIA BY EFCC
5.1 Arrests and Prosecution of Public Officials by the EFCC - 74
5.2 Prosecution and Conviction of Corrupt Officials - - 81
5.3 Factors Undermining EFCC Anti-Corruption Efforts - 83
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5.4 Political Interference in Anti-Corruption Cases - - 86
5.5 Judicial Inefficiency and Deliberate Delay in Prosecution of 8
Corrupt Officials ------89
5.6 The EFCC’S Own Shortcomings - - - - 92
5.7 Unreliable Partners: The ICPC and CCB - - - 93
CHAPTER SIX: SUMMARY, CONCLUSION AND
RECOMMENDATIONS
6.1 Summary ------98
6.2 Conclusion ------103
6.3 Recommendations ------104
Bibliography ------105
Appendix ------111
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List of Tables
Table 1: The Cases of Public Officials - - - 78
Table 2: Economic and financial crimes commission (EFCC) a graft
advisory list (GAL) of high profile cases involving politically
exposed persons in Nigeria - - - - 111
List of Figures
Figure 1: A General Diagram of Structural Functionalism - 34
Figure 2: A Structural-Functionalist Understanding of Deviance 35
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THE ENFORCEMENT OF ECONOMIC AND FINANCIAL CRIMES LAWS AND THE REDUCTION OF ECONOMIC AND FINANCIAL CRIMES IN NIGERIA: A FOCUS ON ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
BY
EDICHA, OJOCHIDE BLESSING PG/M.Sc./12/63197
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DEPARTMET OF POLITICAL SCIENCE,
FACULTY OF THE SOCIAL SCIENCES, UNIVERSITY OF NIGERIA, NSUKKA
OCTOBER, 2013
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CHAPTER ONE
INTRODUCTION
1.1 Background of the study
Corruption is one of the major challenges facing the Nigerian society. It has eaten deep into the fabric of the society. According to Adegbie (2012), corruption and other financial and economic crimes are the bane of Nigerian development efforts. Corruption bestrides the lives of the citizens. The judgment of Transparency International is a reflection of what the nation has given to the world-419, money laundering, inflated contracts, scam mails, illegal oil bunkering, disappearance of ships etc .All these crimes harm Nigerian economy in no small measure.
Ribadu (2004) stated that all these crimes continued in the system in spite of government’s landscape steps to address them, because many people in power want the old dispensation to continue. He reiterated that there are those whose lives thrive on corruption, while there are those even though they are paid to check the activities of the culprits, yet are willing to share in the proceeds with the event that they themselves become culprits.
The high level of political corruption has become a major problem that confronts the government and citizens of this nation given its wide spread into all spheres of societal life. This ugly phenomenon has grown to a stage whereby a day hardly passes without the issue of political corruption being displayed on the front pages of newspapers and magazines or broadcast in the electronic media or discussed by people. Even scholarly literature on its societal consequences are very much on the increase. Corruption, the foundation of economic and financial crimes has a very remote and chequered history in Nigeria. Before the advent of the British colonial masters, traditional methods of trial by ordinances and banishment were adopted to deal with corrupt and wicked leaders and other individuals in the society. On arrival of the colonial
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17 masters, efforts were made to identify and criminalize corruption. While alien administrative officers who engaged in corrupt practices in the colonies were recalled by the home office, indigenous public officers suspected of being involved in corruption were subjected to probe and official investigation. In other words there arose some areas of duplicity in the efforts of the colonial regime in combating financial and economic crimes (Ademoyega, 1987). The history of
Nigeria from 1960 has been the accounts of misappropriation of funds, embezzlement or looting of treasury, prebendalism and settlements through grafts and contracts (Awoshakin 2006). One of the reasons why the administration of Sir Abubakar Tafawa Balewa was overthrown by the military in 1966 was alleged crass materialism among his ministers “corruption in the high places” (Nzeogwu, 1966). After the civil war in 1970 the three “Rs” (Rehabilitation,
Reconciliation and Reconstruction) were massively embarked upon by the Gowon regime with the huge oil revenue that had characterized the war years. The oil fortunes soon became a minus as it prompted the arbitrary and careless Udoji Salary Awards that over- monetized the economy, discouraged rural farming and constructed spatial inflation. The resultant situation was the over prizing of money ahead of social values, which caused infidelity of market forces, embezzlement for increased financial capacity and gratifications(Adele, 1998). Thus, since the end of the Nigerian civil war in 1970, corruption and all forms of economic and financial crimes have assumed an intolerable problem very difficult to attack, control and eliminate.
The sudden wealth arising from oil, which dominated Nigeria’s exports, encouraged greed, corruption and berthed the new trend among the political and military class to seek power by all means because of the opulence occurring from it. About #2.8 billion of oil revenue was allegedly declared missing from the state coffers in 1978 as reckless spending characterized an unaccountable governance (Nwankwo, 1999). This prompted the Obasanjo Declaration at Jaji in
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1977 sign-posting the commencement of the battle against the creeping culture of corruption, bribery and indiscipline.
Shagari’s Ethical Revolution was to transform the society in which corruption and financial indiscipline had become pandemic. The term “revolution” denoted the gravity of the decadence, which could not be handled by Obasanjo’s Jaji Declaration. The period of Ethical
Revolution was marked by state officials amassing Wealth from public parastatals, boards and ministries to stave off as much as possible in an emergent era of” oil doom” (that is, a time fortunes on oil revenue had declined considerably ) with an interface of inflation and deflation.
The Shagari’s administration responded by introducing Austerity measures, a policy that caused severe social and economic hardships that encouraged treasury looting, bribery, fraud and social crimes like robbery. It was the era that witnessed the phenomenon of arson-after looting by officials in a bid to offset all records that could trace culprits.
The image crisis encountered were a culmination of the plethora of failed attempts in the past to eradicate or reduce corruption in the polity. From the Jaji Declaration in 1977 by
Olusegun Obasonjo the Ethical Revolution of Shagari in 1981-83, War Against indiscipline by
Buhari Idiagbon in 1984, National Orientation Movement in 1986 and Mass Mobilisation for
Social Justice by Babangida in 1987, to the War Against Indiscipline and Corruption by Abacha in 1996, it has been a litany of woes between military and civilian leaderships in Nigeria to stem corruption. War Against Indiscipline (WAI) was militant and practical as against theoretical approach to corruption and immorality pursued in 1984 by General Buhari and Idiagbon. Setting up military task forces the war ranged from forcing market prices down, raiding illegal and informal black market sales outlet arresting and detaining corrupt politicians, sentencing corrupt offenders to life imprisonment or death; to compulsory environmental sanitation, maintenance of
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19 decorum at public places, queuing to board buses, trains, planes, to buy stamps at post offices, in making telephone calls, fetching water from public pipes etc.
The measures were however considered too high handed, stifling social life and used as a weapon to eliminate political and military opposition. The task forces were also accused of excesses, such as raiding, looting markets, assaulting” bloody civilians” and intimidating their petty foes or folk alike (Ake, 1987). This attempt to curb corruption remain the situation till 1985 when Babangida regime over-threw the Buhari administration on charges of high handedness among others. Babangida relaxed the war and rather commenced a social and economic reengineering policy, culminating in Structural Adjustment Programme, (SAP). The programme, badly implemented, gave Nigeria away to foreign profiteers who collaborated with local capital clique to make fortune through deregulation (privatization and commercialization) (Osoba,1993).
Indiscipline intensified in the polity: crime rate escalated; short-cut to wealth through drug peddling, money laundering and advance fee fraud 419 became phenomenal in the country.
Three of these variant of corruption and indiscipline namely, drug paddling, money laundering and advance fee fraud or 419 were not only issues that made Nigeria lose its goodwill in the global community, but were also the triumvirate that became associated with the country during the Babangida regime of SAP. It was the combination of Babangida and Abacha mismanagement of the regime of corruption in Nigeria that galvanized the international standing of the Nation in
2000 as one of the most corrupt nations. Speculations were made that the two military rulers corruptly enriched themselves and so could not have controlled the malaise because they were beneficiaries of it. The disappearance of the 5 billion dollars Gulf war oil windfall from 1991 to date added some credibility to this speculation; while government has confirmed reports in the case of Abacha that most of his loots have been recovered (Okojie & Momoh, 2005).
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In 2002, the Nigerian government created a corruption tsar agency with the mission “to curb the menace of corruption that constitutes the cog in the wheel of progress; protect national and foreign investment in the country, imbue the spirit of hard work in the citizenry and discourage ill gotten wealth, identify illegally acquired wealth and confiscate it; build an upright work force in both public and private sectors of the economy and contribute to the global war against corruption or economic and financial crimes (EFCC, 2007). The creation of Economic and Financial Crimes Commission (EFCC) marked a significant shift from the rhetorical talks about fighting corruption to actually doing something and fighting corruption. Other past efforts by previous governments to provide the legal frameworks to combat corruption included, but was not limited to, the creation of the National Drug Law Enforcement Agency in 1989, the money laundry act of 1995, the advance fee fraud and related offences act 1995, the Banks and other financial institutions Act 1991, the miscellaneous offences act 1985 and the foreign exchange miscellaneous offences act 1995. Noble and desirable these effort were, either they were strangled due to inadequate enabling law and regulations or neglected for apparent lack of commitment on the part of the stakeholders to fight corruption in high places (Rebadu, 2004)
Furthermore, at the global level, by the late 1990’s there was increased pressure on developing countries by government of industrialized countries and international organizations to combat and reduce corruption, which had become widespread and was a bane to economic development. It was against this backdrop of failed efforts and international pressure that president Olusegun Obasanjo adopted a multi-pronged approach to fight to fight corruption in order to redeem Nigeria’s image by creating the following agencies: The Anti-corruption
Commission, the Due Process Office in the presidency, the Corrupt Practices and Related
Offences act 2000 and the Economic and Financial Crimes Commissions 2003.
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The Economic and Financial Crimes Commission (EFCC) was established by the EFCC
(establishment) act. The Economic and Financial Crimes Commission (EFCC) is charged with the responsibility for the enforcement of all economic and financial crimes laws, among other things. It is a body corporate with perpetual succession and seal. It may sue or be sued in its corporate name and may, for the purpose of its function acquire, hold or dispose of property. It is the designated financial unit (FIU) in Nigeria which is charged with the responsibility of co- ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes. Under section 6(b) of the
EFCC act, the commission shall be responsible for the co-ordination and enforcement of all economic and financial crime laws and enforcement functions conferred on any other person or authority. Thus, the vision of the Economic and Financial Crimes Commission (EFCC) is to make Nigeria a safe and corrupt free Nation and enhance the positive image of the country.
Adegbie (2012) observed that over 200 convictions for corruption, money laundering, bank fraud, advance fee fraud were recorded by EFCC. He noted further that assets worth over$5 billion was recovered by EFCC in less than five years of its existence. Despite all these efforts to fight crime, there were politicization and blackmail regarding the cases taken to court. Section
308 of the Nigerian constitution grants immunity. There were public apathy and doubtful attitudes towards anti-corruption work. Slow justice system, insufficient commitment by other arms of government, International assets recovery frustration was recorded. Nevertheless the problem has grown geometrically in the economy. Alipius (2009) stated that EFCC efforts to fight crimes and its achievements were proved by the 2008 annual report by the United Nation office on Drugs and Crime (UNODC) which rated the commission as the most successful anti- corruption agency in Africa and Nigeria. Transparency International ratings had moved from 142
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Notwithstanding these achievements, Nigeria is still bedeviled by political, economic and financial crimes as reports of embezzlements, fraud, contract inflation, etc. Against this background; it therefore becomes imperative to examine EFCC enforcement of economic and financial crime laws and reduction in economic and financial crimes in Nigeria.
1.2 STATEMENT OF THE PROBLEM
One of the most fundamental problems facing Nigeria today is corruption. Corruption has not only weakened the moral fiber of Nigeria, it has also weakening havoc of nit’s body politics.
Corruption has subverted the rule of law, eroded confidence in the judiciary, undermined
Nigeria’s ability for self-development; discouraged the habit of industry, discipline, honesty, dedication and hard work and made nonsense of public accountability. It had rendered patriotism nearly impossible in Nigeria.
Considering the pervasive and ubiquitous nature of corruption in both the private and public life of an average Nigerian, the world record has rated Nigeria the second most corrupt country (Thovoethin, 2003).
Corruption has become a cog in the wheel of development in Nigeria, with indication of poor service delivery the public services, misappropriation of public funds, and other forums of frauds both at public and private levels. On this note, Ribadu (2007:212), observed that Nigeria’s previous leaders stole about 63 trillion naira (about $570 billion) from public coffers.
Nevertheless, efforts so far made by the government and nongovernmental organization have not been too effective in eliminating or eradicating corrupt practices in Nigeria. Today, there is still in abated activities that involves the perversion of integrity or state affairs through bribery,
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23 favour or moral depravity, use of state power to satisfy private interest; heartless manipulation of governmental machineries; direct embezzlement; skewed patronage in favour of collaborators; inflation of contracts; over invoicing and other kinds of illegal activities by a person in position of authority. Often, holders of public office do not hold in trust but use their offices to commit all sorts of financial and other crimes and their indictment sometimes seem difficult following the immunity of their offices. In this wise, it is important to stress that the people that set out the institution for fighting corruption in Nigeria has not been also questioned, as Abdullah
(2009:350) and Oladipo (2009:375) argued that those who are to checkmate incidence of corrupt practices have fallow victims of the same crime. In other words, it is important to assess the role of anti-corruption agencies like EFCC in the fight against corruption. It is against this backdrop, this study will examine the following questions:
i. Does the immunity of public office holders hinder the effective enforcement of economic
and financial crime laws by the Economic and Financial Crimes Commission in Nigeria? ii. Does the arrest and prosecution of corrupt government officials by the Economic and
Financial Crimes Commission (EFCC) reduce the incidence of corruption among
government officials in Nigeria?
1.3 OBJECTIVES OF THE STUDY
The broad objective of this study is to carry out an appraisal of the performance of the
Economic and Financial Crimes Commission (EFCC) in reducing corruption in Nigeria. The specific objectives include:
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enforcement of economic and financial crime laws by the Economic and Financial
Crimes Commission in Nigeria. ii. To determine whether the arrest and prosecution of corrupt government officials by
the Economic and Financial Crimes Commission (EFCC) reduced the incidence of
corruption among government official in Nigeria.
1.4 SIGNIFICANCE OF THE STUDY
The contribution of this study will be two fold, theoretically and practically.
Theoretically, this study examines the role of the EFCC in combating corruption in Nigeria with specific attention to its role in the reduction of the menace and the effect in immunity of public office holders on the complain this study will be of immense significance in ascertaining the progress so far made by EFCC in combating corruption in Nigeria.
The study will assist in unveiling the challenges or factors militating against effective enforcement of EFCC laws in combating corruption in Nigeria. This study will also contribute to improve the awareness on the activities of EFCC in combating corruption in Nigeria, and measures to strength the operations of EFCC in achieving its goals and objectives. This study will improve our knowledge on how the arrest and prosecution of corrupt government officials by the Economic and Financial Crimes Commission (EFCC) been able to reduce the incidence of corruption among government officials in Nigeria and show how the immunity enjoyed by public office holder hindered the effectiveness of EFCC in combating corruption in Nigeria. In general, this study will be of great benefit to both government and the citizenry because it has the potential of reorienting the perception of Nigerians to public services.
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Practically this study attempt to provide vital information for further academic research bordering on the topic and other related issues/topic. Findings of this study will be relevant to policy maker, diplomatic personal engaged in fight against corruption in Nigeria as well as
EFCC management office that is saddled with the responsibility of prudently managing Nigerian fight against corruption in order to achieve the national objective as regards to fight against corruption.
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CHAPTER TWO
LITERATURE REVIEW
The study sets out to examine the performance of the Economic and Financial Crimes
Commission in the reduction of corruption among government officials in Nigeria. The aim of this review is to explore the views of writers in order to determine the gaps in literature with respect to the following research questions:
1. Does the immunity of public office holders hinder the effective enforcement of economic
and financial crime laws by the Economic and Financial Crimes Commission in Nigeria?
2. Does the arrest and prosecution of corrupt government officials by the Economic and
Financial Crimes Commission (EFCC) reduce the incidence of corruption among
government officials in Nigeria?
The review, therefore, will focus on studies related to corruption, particularly in Nigeria, and the immunity of public officeholders.
2.1 CORRUPTION AND INCIDENCE OF CORRUPTION IN NIGERIA
The concept of corruption has been described by Transparency International (2002), as
“an inappropriate or illegal behavior of public sector official (politician or public officer) by misusing the entrusted power for private gain of the person or related people. The World Bank
(1997) defined corruption as “the abuse of public office for private gains.” This includes, when public officials accept, solicitor extort bribes and the private sectors offer bribes to subvert or circumvent public policies for competitive advantage and profit.
Similarly, the UNDP (2004) defined corruption as the misuse of public power, office or authority for private benefit – through bribery, extortion, influence peddling, nepotism, fraud, speed money or embezzlement. Akindele (1995) defines corruption as any form of reciprocal
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27 behavior or transaction where both the power/ office holder can respectively initiate the inducement of each other by some rewards to grant ( illegal) preferential treatment or favour against the principles and interest of specific organization (or public) within the society. Over all, corruption covers such acts as use of one’s office for pecuniary advantage, influence peddling, insincerity in advice with the aim of gaining advantage, less than a full day’s work for a full day’s pay, tardiness and slovenliness. Osoba (1998:378), defines corruption as an “anti-social behavior conferring improper benefits contrary to legal and moral norms, and which undermine the authorities” to improve the living conditions of the people.
Although many useful definitions of corruption, varying in their emphasis, have been posited, the one which best provide the emphasis needed here was postulated by Osoba as:
A form of anti-social behavior by an individual or social group which confers unjust or fraudulent benefits on its perpetrators (and) is inconsistent with the established legal norms and prescribed moral ethos of the land and is likely to subvert or diminish the capacity of the legitimate authorities to produce fully for the material and spiritual well- being of all members of society in a just and equitable manner (cited in Jike, 2005:156).
The dictionary of the social sciences, under the auspices of UNESCO (1963) defines corruption as the use of public power for private profit, preferment, or prestige, or for the benefit of group or class, in a way that constitutes a breach of law or of standards of high moral conduct.
Klitguard and Maclean (2000) have similar opinion of corruption, as it is the misuse of office for personal gain. They further describe that it can be internal to the organization (e.g embezzlement) or external to it (e.g extortion). Although corrupt acts sometimes may result in a net social benefit, corruption usually leads to inefficiency, injustice and inequality.
Corruption is any transaction between private and public sector actors through which collective goods are illegitimately converted into private-regarding pay offs (Heidenheimer, et al
1996). The definition establishes the necessary involvement of the state and state agents in
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28 corruption with any notion as to the level of authority where corruption takes place (Amundsen,
1999:3). In broad term corruption is the misuse of government officials of their governmental powers for illegitimate private gain. Misuse of government power for other purposes, like illegal acts by private persons (Babylon’s free Dictionary 2008).
The International Monetary Fund Munual on Fiscal Transparency (2007) defines corruption as the misuse by government or political official of their governmental powers and resources for illegitimate, usually secret private gain. Chinhamo and Shumba (2007) on the other hand defined corruption as the abuse of public power, resources by government officials or employees for personal gain. For example extortion, soliciting or offering bribes. The southern
African Development Community in the protocol against corruption defines corruption as any act referred to in Article 3 and includes bribery or any other behavior in relation to person entrusted with responsibilities in the public and private sectors which violates their duties as public officials, private employees, independent agents or other relationships of that kind and aimed at obtaining undue advantage of any kind for themselves or others (SADC, 2007:1).
Chinhamo and Shumba (2007) posits that the above definition is more detail in the same way, Heindenheimer (1989) posit that since it recognizes that corruption also takes place in the private sector and other settings. What is also important about the SADC definition is that it gives the leeway to include acts of corruption that are hidden for instance, abusing national resources for political gains. There is however need for such acts to be clearly spelt out in the list of acts of corruption.
Dike (2011) notes that though some of these definitions of corruption have been around for over decades, the recent development in Nigeria was discoveries of stolen public funds run into billions of US Dollars and Nigeria naira. He further observes that corruption is probably the
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29 main mean of accumulating quick wealth in Nigeria. Corruption occurs in many forms and it has contributed immensely to the poverty and misery of a large segment of the Nigerian population.
Corruption has become institutionalized in Nigeria. Aluko (2002) also note that corruption now appear to have become a permanent feature of the Nigerian polity. It had become completely institutionalized, to enter into the realm of culture and the value system. It is now a norm and no longer an aberration. The young ones are born into it, grow up in it, live with it and possibly die in it. The aged are not left out as they are re-socialized and begin to conform to it.
Achebe (1988), posits that the situation has become worse to the extent that, as far back as 1993, keeping an average Nigerian from being corrupt was like preventing a goat from eating yam. It is not an exaggeration of tragic events of the country since independence to say that all efforts to establish a just and efficient administration have been frustrated by the system (Keeper
2012). This monumental corrupt practice in Nigeria is very severe and devastating. The menace of corruption by Nigerian leaders has certainly emerged as one of the main impediments to national development. Corruption by Nigerian leaders has caused the country severe loses economically, politically and socially, and these facts are responsible for decayed infrastructure, downturn of the economy, fragile political institution and steady decline in all indicators of national development.
Research has shown that the prevalence of corrupt leaders in Nigeria had a tremendous adverse effect on the quality of life, living standard and nation psyche. To the leaders the national objective is very secondary, more consideration are given to self than the interest of the society without minding the descriptive impact,(Eulou 1963, in Dike 2006). Keeper (2011) agreeing with Dike (2006), opines that corruption brings a country no good. Corruption according to lipset and lenz (2000:112) is the effort to secure wealth or power through illegal
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30 means, private gain at public expense or misuse of public power for private benefit. Similarly
Ofeze (2004:20) sees corruption as referring to any action or inaction of any person or group
(public and private) deliberately perpetuated to secure advantages for oneself, a relation, association or groups in a manner that detract from the accepted regulations, morals and, or ethical standard or code and hence constituting a travesty of justice, equity and fair play.
According to Asogwa (2008:196), Nigeria has been deeply trapped in the web of systematic corruption, a deadly virus, once it enters into the blood stream of any system, it spread quickly to all the segments of the organization. The result is that the virus will adversely affect the effectiveness of the system. While Shively (2007:108) assert that corruption has the potentiality to produce cynicism, lack of faith and disregard for the rule of law. This can also contribute to broader political instability one recall that Nigeria armed forces ousted the democratic and military governments alike over changes of corruption and it was largely because of the high level of corruption of the government that the military takeover of each time was widely applauded. What corruption does to the system more generally is the high cost of government services, poor service delivery and inflated cost of government programmes.
Corruption reduces economic growth and the benefits the society receive from governmental services. In spite of these seemingly noble efforts government has made to combat corruption, it is sad to note that most top governmental functionaries are deeply involved in corrupt practices.
Corruption inhibits development because resources meant for public services are been diverted to individual purses. The qualities of services rendered are seriously affected in standard. Some developmental projects enunciated by the government are often abandoned or left uncompleted after collecting mobilization fee (and possibly paying up front of ten percent of the total value of
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31 the contract to the government functionaries that awarded the contract). In his observation on the status of corruption in Nigeria, Obasanjo (cited in Okeke 2003:257) states that:
Corruption was identified as number one enemy of development and progress. Combating corruption was easily the number one priority action for our administration, corruption is the canker warm that has eaten into the fabric of our society at every level. It has caused decay and dereliction within the infra-structure of government and the society in physical, social and human terms. Corruption has been responsible for the instability of successive government since the first Republic. Every coup then has been in the name of stamping out the disease called corruption. Unfortunately, the cure after tune out to be the worse than the disease. Nigeria’s external image took a serious bashing, as our beloved country began to feature on top of every corruption index.
The systematic study of corruption is hampered by the lack of adequate definition (Peter
1978, Johnson 1991, Brinkerhoff 2000, Izibili and Aiya 2007). A classic perception of corruption is that of Rogow and Lasswell (1963:123-133), for them corruption is the violation of the public interest. In a broader perspective Brinkerhoff (2000:241), sees corruption as “subsuming a wide variety of illegal illicit, irregular or unprincipled activities and behaviors. From the above perspective, corruption then is importantly a moral, political and legal issue, thus corruption is a multidimensional concept that has legal, social, political, economic and ethical connotations. It comes in various forms and dimensions. For the purpose of this study, corruption is conceived as misuse or improper use of power and influence, deliberately and consciously for personal aggrandizement or group advantage. Therefore, corruption connotes the abuse of public role or resources or the use of illegitimate form of political power and influence of public or private parties.
For some decades now, corruption has been a cause for concern because it diverts already limited funds, undermines economic progress, provision of infrastructural facilities and impedes policy changes required for development (Lawal 2012). Nigeria’s development has been
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32 undermined and retarded by the menace of corrupt practices. Ayttey (2002) and the daily Nation in Ukpong (2012), opines that corrupt government officials sometimes falsify documents for intending to show that government transactions have been made, or contracts executed when in fact there were no such transactions and no contract has been executed.
Peter (1978), Johnson (1991), Brinkerhoff (2000) and Aiya (2007) observed that corruption has hampered development in Africa (Nigeria inclusive). Lawal (2012) agreeing with
Ukeje (1999), says that anybody who say there is no corruption in the country is either a fool, a crook or does not live in the country. Ayittey (2002) is of the opinion that wealth resulting from corruption forms part of capital flight. Myrdal (1970), Waterbury (1973), Krueger (1974) and
Caiden (1976) argue that corruption weakens bureaucratic efficiency, undermines government capacity for service delivery, erode legitimacy leads to the misplacement of priority, exacerbate the burden of the poor and marginalized groups and doubles the costs of government projects.
Transparency International (2006:4) sees corruption as “the abuse of public office for
private gain” similarly; the World Bank (1997:102) sees corruption as the abuse of public
power for private gain.” For Nye (1967:418) is behavior which deviates from formal duties of
public role (elective or appointive) because of private regarding (personal, close family, private
clique) wealth or status gains regarding influence. It is glaring that corruption pervades the
entire public and the private sector in Nigeria. Shafritz (1988) asserts that corruption manifest
in both the public and private realms of life in Nigeria. Kuka (1999) for instance, believes that
in Nigeria corruption wears a royal crown and that it has become a household utensil, adding
that the federal government, government agencies, the police force, Nigeria university system,
companies, Nigeria homes and even administration of the churches and mosques are not
exempted. This hydra handed stigma of corruption rears its ugly head in form of bribery,
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nepotism, embezzlement of public funds, tribalism, election rigging, lobbying for posts,
forgery, smuggling, examination malpractices etc. Even Shehu Shagari was perturbed when he,
as president of the fourth Republic of Nigeria discovered the spate of corruption in 1983. In his
own words:
I am dismayed to understand that corruption, fraud and smuggling are not only being industrialized but are fast becoming business pursuit in our country those who are public servant or citizens rise to become wealthy in the society today through criminal records and luckily had the position of affluent which are embraced by the society while merit and integrity are hardly recognized. Forgetting that, these public servants are major powerful instrument through which administrative corruption flourishes in Nigeria today (Montgomery, 1975:48).
Speaking on public servants, Kamar (2005:11) says: the public service contains a powerful inner dynamic set up which leads to the growth of government and expansion of public responsibility. This assertion by Kamar confirms the fact that public servants are major government functionaries are saddled with the responsibility of ensuring that honesty and ideal sustainable societal development are achieved, for this reason no doubt that the present state of
Nigeria underdevelopment is attributable to the malfunctioning of Nigeria leaders due to visible bad governance which is also associated with the entire civil service administrative system due to the persistent and consistent fertile presence of corrupt practices in Nigeria government and culture.
It is in this connection that Lutzer (1993) sees squander mania mentality or consumer society where unproductive spending or wealth exhibitionism show off or what another author refers to as love of ostentation has become the order of the day, Nigeria is a place of veritable showmanship through wealth displays and acquisition (Olapekun,2005). Okonjo (2005) aptly describes this as a manner of how Nigerians bury their money. In all this cases, the rate of
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34 corrupt practices in the country is traced to squander mania mentality of Nigerians vis-à-vis the extended family burdens. Ningi (2005) contends that since the country’s attainment independence in 1960 corruption has been the most potent factor that had impeded development in Nigeria. Adding that corruption has greatly contributed immensely to the eclipse of both the first and second Republic in Nigeria, which is a truth beyond all telling. Corruption no doubt to a large extent compounded the regimes of former General Babangida and Abacha’s military eras and the relatively precarious porous third republic. Corruption has by large, become out rightly a cancer to the body of polity in the fourth Republic, giving the nation the odd image of one of the most corrupt nations in the world. And this is true because the corrupt nature of Nigerian polity has inadvertently given the country a stinking stigma of the sixth and then eighteenth most corrupts country in the entire world (Akuezuibo 1993).
Abah (2005) avers that the virus of corruption has done a lot of harm and no good to the nascent democratic experiment in Nigeria as public officers more often than not regard their offices as goldmines and Gods sent opportunity to flagrantly loot and amass wealth. He sees corruption as an instrument of internal colonization and underdevelopment. According to him, claim to democratization in Nigeria would be a mirage if the legacies of corruption which were left behind by some corrupt past Nigerian leaders are not permanently cleaned up in a furious hurry. He notes that ex-public officials known to have ruined our treasury for years are being re- elected adding that people who took public funds are being rewarded with national honors and chieftaincy titles. He went ahead specifically to hit the nail on its head by stating that the mere act of military coup is itself an act of corruption. In his reckoning, corruption is classified into three categories namely, petty class, middle class and high level class. The researcher agrees
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35 with the whole ideas expressed here and also that these categories of corruption mentioned above no doubt are found in Nigerian government and diverse cultures.
Dike (1976) also holds strongly that corruption is pandemic in Nigeria to the extent that even mad men and women on the street believe it is the bane of Nigeria. He tries to group it into three broad typologies; political, electoral and office corruption. Igboin (2005) vividly portrayed the state of affairs (corruption and bad governance) in Nigeria has been monumental. He sees
Nigeria as a land of no tomorrow, where there exists a complete split between power and moral rights and justice, where access to power is through corrupt means and crime as men seek instant gratification and resort to ethnic prejudice and religious bigotry in the quest for individual socio- economic advancement to the detriment of the masses. However he sees Nigeria as one of the world’s strategic nation and a pivot point on which the continent of Africa in particular spins and should not be as unsuccessful as it is today due to high level of corrupt practices in the country.
Lutzer (1993) reiterates the United Nation’s (UN) identification of corruption and bad governance as the bane of developing societies. And he notes how lack of competence, innovation, ethics and integrity has been at the root of inefficiency, poor performance, management, all persuasive corruption and decay in the public sector. According to him, the prevailing circumstances have led to a wide range of socio political ills such as insecurity, civil strife, socio-economic depravity and perpetuation of poverty, political violence and war.
Akuezuibo (1993) traces the history and philosophy in African Nation Building in an experiment and predicted against a firm conviction and faith in the ability of Nigeria to survive as a modern nation-state if corruption is not left out totally. He holds the view that there was a rise and a period of hope and national confidence in Nigeria before the current decline, which will in turn, be followed by a new era of national insurgence, provided the necessary and
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36 sufficient condition to avert corrupt practices are not established. Nigeria is caution to have stitch in time through a variety of reform strategies so as to avoid a total collapse of the system
(Ezekwesili 2004).
According to Aina (1992) policies for the reduction or eradication of corruption must be vigorously and consistently pursued and maintained. He therefore opined that for the Obasonjo’s administration’s crusade on corruption to succeed, the main requirements is a committed and sustained, corrupt- free leadership as well as a supportive civil society. In Nigeria there is a consensus among well-meaning individuals and foreign nations that corruption has inevitably become a major clog in the quest for sustainable growth and development. It was further agreed that it must be halted before it shut down the country. It is the single most critical impediment to achieving the millennium development goals (MDGs), and like a deadly virus it attacks the vital structures and systems that engender progressive functioning of the society. Like most developing countries, Nigeria is still grappling with the dilemma of corruption that has largely retarded social development, undermined economic growth, discouraged foreign investments and reduced the resources available for infrastructural development, public service and poverty reduction programmes (Findings 1999). Much more disturbing, the scourge of corruption leaves the poor perpetually disproportionately underprivileged, even as it renders the development of democracy and the building of a society of opportunity more problematic (Ribadu 2006). Thus, by diverting asset away from their intended use, corruption can be said to be the single most important factor responsible for the failure of governance and lack of sustainable socio-economic development in Nigeria. Ribadu further asserted that without doubt, the unpardonable failure of the political leadership class managing the affairs and wealth of the country had inevitably brought severe misery to many voiceless and helpless Nigerians. It must also be mentioned here
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37 that Nigeria’s post independence political bureaucratic and military elites had terribly pillage the nations common wealth and national patrimony with impunity, thereby denying Nigerians access to economic prosperity and quality living condition. Also disheartening is the fact the volume of development assistance totaling about $400 billion that flowed into the country for socio economic development between independent and the collapse of military dictatorship 1999 was atrociously squandered by the political leaders of the period. The mismanagement of resources of such quantum which was worth six times the resources committed to the rebuilding of west
Europe after a devastating second world war simply defined the callousness of political leadership class towards the socio-economic wellbeing of the country.(Ribadu 2007).
According to Ogbeidi (2012) it is difficult to think of any social ill in the country that is not traceable to the embezzlement and misappropriation of public funds, particularly as direct or indirect consequences of the corruption perpetrated by the callous political leadership class since independence. Ogbeidi further opined that the most tragic effect of corruption in Nigeria has been the failure of the country to attain it economic potentials. Despite its substantial natural and human resources, Nigeria remains desperately poor due to bad management of its wealth by successive corrupt governments.
The US vice president Algore is of the view that corruption is a serious crime with devastating consequence. Speaking at the global forum of fighting corruption, he said it is “a cold vicious, often violent sacrifices of citizen security for a narrow, greedy, private, personal profit on the part of the crooked official” (Zhang 1996 in Tony 2008:40). The ICPC act
(2000:25) saw corruption as a multi-faceted phenomenon that ranges from giving and accepting of bribes to other kinds of fraudulent practices. Corruption is an act which deviates from the formal rules of conduct governing the actions of someone in a position of public authority
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38 because of private regarding motives such as wealth, power or status (Khan 1996). Black and
Garner (2002) affirm corruption as an official or fiduciary person who unlawfully or wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and lights of others. The act went further to posit that corruption covers any illegal use of power by any persons for personal or arbitrary purposes. Toyo (2006:2) posited that corruption consist of depravity, venality or peculation in playing a social role. According to Braguinsky
(1996) corruption is the misappropriation of government property or revenues made possible through government regulation. Braguinsky, further posited that corruption occurs in many forms and it has contributed immensely to the poverty and misery of a large segment of the
Nigerian population. Otite states that corruption is the perversion of integrity or state of affairs through bribery, favor or moral depravity. It takes place when two parties have interacted to change the structure or process of society or the behavior of functionaries in order to produce dishonest, unfaithful or undefiled situations. Corruption transcends bribery but includes treasury looting and the deliberate bending of rules of the system to favor friends or hurt foes. It is clearly an absence of accountability, law and order (Otite 2000). In Nigeria, corruption led to decaying infrastructure, inadequate medical services, falling educational standards mismanagement of foreign loans, bloated imported bills and public expenditure, reduces production capacity, distortion of the economy through waste and misallocation of resources in 2001-2004 lost more than #23billion to corruption (Salu & Aremu 2004).
Indeed, it is impossible to overstate the poisoning which corruption brought to Nigeria.
Literally, it undermines effective governance and erodes the social and moral fabric of the nation
(Dike, 2003). According to Yusuf (2000), “it is because of corruption that neither the landscape of Nigeria nor the standard of living of its citizens has significantly increased since
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39 independence, despite the huge deposits of natural and human resources in the country.
Therefore, as Idris (2011) submitted, corruption affects the economy, political circle, socio- cultural setting, administrative structure and entire Nigerian environment.
According to Sen, (1999) corruption discourages honest effort and valuable economic activities and breeds inefficiency and nepotism. It leads to information distortion as it cooks the books and a high level of corruption can make public policies ineffective (World Scandal 2002).
In the same way Cooksey (1999) opines that corruption impacts negatively on government expenditure, because corrupt government officials would shift government expenditures to areas in which they could collect bribe easily. Unfortunately this makes it large and hard to manage projects such as airport or high way or large, high cost capital intensive projects easy prey to frauds. Cooksey also note that corruption reduces the size of a nation’s economic cake thereby exposing some segment of the population to poverty. The Asian Development Bank (ADB) sees corruption as the behavior on the part of officials in the public and private sectors, in which they improperly and unlawfully enrich themselves and/or those closely related to them or induce others to do so, by misusing the position in which they are placed (ADB cited in Ayua 2001).
According to Okonkwo (2001) corruption is an amorphous expression because it can be used to embrace a wide range of misdeeds, strictly, legally; however to corrupt is to deflect, to sway someone from a proper performance of his duty. But it can also encompass bribery, extortion and other forms of official malpractices.
2.2 IMMUNITY AND POLITICAL CORRUPTION IN NIGERIA
According to Malemi (2006), immunity is an antique concept with roots in the ancient feudal structure of England which later became a Common Law principle. Gray (1959) observed that the concept thrived at the time of absolute monarchies in medieval England when it was the
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40 norm that sovereignty and governmental powers were personified in the person on the throne of
England. The person occupying the English crown was at the top rung of the feudal ladder and as such was not subject to the court within the realm (Oluyede, 1992). The foregoing was premised on the thinking at the time that the king as a result of his office, status and position in society as the sovereign could do no wrong. The concept held sway in England until democratic thoughts and institutions caused the concept to lose its moral force. In 1947, as practically as possible, the crown was made liable in tort in the same way as private persons through the Crown
Proceedings Act,1947. The Act also reformed the rules of procedure governing civil litigation by and against the Crown. However, the concept of immunity went along with the English as they conquered new lands, and the new territories acquired along with the English legal system, the concept of immunity.
According to the Black’s Law Dictionary, immunity means: “Any exemption from a duty, liability, or service of process;… such an exemption granted to a public official”. Quoting
Kionka (1992), the dictionary stated further that:
An immunity is a defence to tort liability which is conferred upon an entire group or class of persons or entities under circumstances where considerations of public policy are thought to require special protection for the persons, activity or entity in question at the expense of those injuries by its tortuous act. Historically, tort litigations against units of governments, public officers, and charities, and between spouses, parents and children, has been limited or prohibited on this basis (http://dictionary.getlaw.com/immunity)
Immunity protects the holder from liability that would otherwise have been imposed.
Immunity is not a defence to a legal action; it eliminates or postpones a person’s ability to advance a legal claim against the immune for wrongful action. If a legal claim is filed against the immune, he or she only needs to ask the court to dismiss the claim on the basis of the immunity,
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41 without necessarily filing a defence to the claim. Immunity could be absolute or qualified.
Absolute immunity is a complete exemption from civil liability, usually afforded to officials while performing their duties. From the Nigerian standpoint, it includes immunity from civil or criminal prosecution against the holder in his personal capacity while in office. Qualified immunity on the other hand is immunity from civil liability that is conditioned or limited, for instance by a requirement of good faith or due care.
Under Nigerian law, this extends to immunity for an official act exemplified by those enjoyed by Nigerian judges and lawmakers, whereas criminal acts and acts not falling within their official mandates are liable to court processes. Immunity benefits different government officials or exists at different levels under different epithets. Thus, legislative immunity is enjoyed by lawmakers, executive immunity is enjoyed by elected officials of the executive branch of government, judicial immunity is granted to judges, diplomatic immunity is enjoyed by foreign diplomats and envoys, and sovereign immunity is enjoyed by a sovereign government, while constitutional immunity is one contained in the constitution.
Immunity is an internationally recognized concept. By the Vienna Convention on
Diplomatic Relations 1961, foreign Heads of States and diplomats are immuned from civil and criminal processes of foreign countries. Nigeria, being a signatory to this convention, has domesticated it.15 In the United States, constitutional immunity exists for members of congress only. By the provisions of the United States Constitution, members of Congress enjoy two qualified immunities, which are: (1) the exemption from arrest while attending a session of the body to which the member belongs, excluding an arrest for treason, breach of the peace, or a felony; (2) the exemption from arrest or questioning for any speech or debate entered into during a legislative session. This immunity is termed qualified because the ‘Speech or Debate Clause’,
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42 as most American writers call it, is strictly limited to legislative functions. The immunity of the president is not constitutionally provided for; rather it has been given judicial recognition through the interpretation of the concept of separation of powers. However, Presidents in the
United States have generally argued that they should enjoy absolute immunity, meaning that except for impeachment proceedings, they can personally ignore all other civil or criminal proceeding before courts of law. Recent decisions of the Supreme Court of the United States points to a rejection of this argument in civil proceedings, at least. In tracing the development of executive immunity in the US, a distinction was made between immunity for constitutional violations and immunity for non-constitutional violations, as well as immunity of federal officials and immunity of state officials. State officials’ immunity for non-constitutional violations is a matter left to each State’s laws; while, with the exception of the President, no executive official, state or federal, was fully immune from damages actions for constitutional violations.
According to the Supreme Court of the Philippines (1988), the grant of executive immunity is to ensure that the exercise of presidential duties and functions are free from any hindrance or distraction, considering that the office of Chief Executive is a job which, aside from requiring all of the office-holder’s time, also demands undivided attention.
The concept of sovereign immunity was one of the Common Law principles inherited by
Nigeria as a former colony of Britain. Under colonial rule, the position was that the Queen had sovereignty over the whole Nigerian territory and as such she enjoyed sovereign immunity throughout the terrritory. On attainment of independence, a Nigerian represented the Queen but on attainment of a republican status the President of Nigeria succeeded the Queen as Head of
State. The immunity enjoyed by the Queen was transferred to the President and the Governors
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43 after the attainment of republican status in 1963. Thus, section 161 of the 1963 Republican
Constitution provided that:
1. (a) no criminal proceedings shall be instituted or continued during his period of office against a person to whom this subsection applies; and
(b) such a person shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no proceeding in which relief is claimed against such a person in his personal capacity shall be instituted or continued in any court during his period of office; but in ascertaining whether any period of limitation has expired for the purpose of any proceedings against a person to whom this subsection applies, his period of office shall be left out of account.
2. subsection (1) of this section applies to a person holding or required to perform the functions of the office of the President or of the Governor of a Region, and in that subsection “period of office” means, in relation to such a person, the period during which he holds or is required to perform the functions of the office in question. A similar but more explicit provision was incorporated into the 1979, 1989 and the current 1999 constitutions.
In a situation, where all these corrupt practices are deep rooted, it becomes difficult for development to take place and so there is need for EFCC to work hard in the fight against economic and financial crimes (corruption).
2.3 ARRESTS AND PROSECUTION OF CORRUPT PUBLIC OFFICIALS
Scholars have long argued that the most important measure of Nigeria’s anticorruption record is its success or failure in prosecuting corrupt nationally prominent political figures.
Corruption by high-level officials such as state governors who control vast financial resources directly impedes the provision of adequate health and education to Nigerians by diverting the
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44 resources that might otherwise flow to basic services. In a broader sense, high-level corruption in
Nigeria is so widespread and so central to the day-to-day workings of government that it undermines the effectiveness of public institutions at all levels, from the national police to local government primary education authorities.
By the same token, some scholars contend that the EFCC’s public challenge to the impunity enjoyed by abusive members of Nigeria’s political elite has been its most important accomplishment in the fight against corruption. Only by holding prominent officials to account for corruption can Nigeria’s government show that corruption will not be tolerated, and discourage officials at all levels from stealing public funds the country needs to provide for basic needs. The following pages examine the relative performances of the EFCC under Ribadu and
Waziri in pursuing those prosecutions.
For the purposes of this research, public officials” include current or former state governors, federal government ministers, and members of the federal Senate or House of
Representatives, as well as a handful of other political figures who can without any controversy be described as nationally prominent.
At various times, Ribadu publicly claimed to be pursing investigations against an endless parade of important public officials. These public statements generated continual headlines and contributed to an impression that the agency was fighting corruption on a thousand fronts at once. But in reality, the EFCC’s attempts to prosecute nationally prominent political figures have been characterized primarily by delay, frustration and failure—under both Ribadu and Waziri.
The cases have generated far more headlines than convictions, and neither Ribadu nor Waziri can claim more than a handful of concrete successes.
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Waziri argued that the number of important cases she has filed compares favorably with
Ribadu’s own record. And in terms of raw numbers, she has a point. As the charts below show, the number of prosecutions targeting allegedly corrupt nationally prominent public officials is higher under Waziri (16 cases) than Ribadu (10 cases).
There are at least two important caveats to this assessment. First, much of the investigation and other legwork for some of Waziri’s initial prosecutions was done before she took the helm.56 A review of her record shows that there has been a significant drop in the number of new cases after those initial prosecutions. For example, during Waziri’s first year in office, the EFCC arraigned 10 nationally prominent political figures on corruption charges compared to just six in her next two years combined. On the other hand, in June 2011, Waziri stated that investigations against nine other former governors were at an “advanced stage.”
Second, the EFCC’s funding has tripled since 2007—its annual budget grew from approximately
$23 million in 2007 to $60 million in 2010, without a commensurate increase in the rate of new prosecutions.
2.4 GAP IN LITERATURE
The extant literature reviewed demonstrates that researchers have written extensively on the issue of corruption, its nature and manifestation in the Nigerian society as well as impact on the economy. Furthermore, the review showed that scholars have also examined the concept of immunity of public officials in Nigeria which they are agreed is necessary for effective administration of the state. The review also showed that there are researches on the arrests and prosecution of corrupt public officials in Nigeria. However, the review showed that extant literature has been silence on the impact of EFCC arrests and prosecution of corrupt public officials on the reduction of economic and financial crimes in Nigeria. Also, extant literature has
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46 not satisfactory determined if immunity of public officials has hindered the effective enforcement of economic and financial crime laws in Nigeria.
Having reviewed what scholars have written concerning the crime and its effect in
Nigeria, we found out that none of the scholar said anything on the factors militating against the enforcement of economic and financial crime laws.
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CHAPTER THREE
3.1 THEORETICAL FRAMEWORK
Structural functionalism as a theoretical framework is intended to explain the basis for the maintenance of order and stability in society and the relevant arrangements within the society, which maintain the said order and stability. In our formulation of a structural functional framework, social processes and social mechanisms are intervening variables. A complete description of a social system would include, therefore, a treatment of the social structures, and various functions of these structures; and of the social processes and mechanisms that must be in operation if structures are to satisfy certain functions (Holt, 1967:90). It is Holt’s view that structural functional analysis is a distinguishable approach primarily because of the selective aspects of social reality that it seeks to describe largely in terms of structures, processes, mechanisms and functions. These four concepts are of particular importance in the laws and theories that are developed (Holt, 1967:86).
The origin of modern functionalism can be traced to Comte. The prominent theorists of structural-functionalism are Herbert Spencer (1874-96); Almond (1966); Parsons (1937, 1961);
Merton (1957); Davis (1959); Evans-Pritchard (1940); Meyer Fortes (1945); etc. Almond
(1966), one of the principal proponents of structural functionalism, argues that every political system performs certain functions. He adopted Easton’s systems analysis and stressed the functions which could be included among the input and output functions of all political systems.
The inputs are the functions of interest articulation, and interest aggregation; while the outputs are the functions of rule making, rule application and rule adjudication. According to Almond, the functioning of any political system may also be viewed in terms of its capabilities, which is the way it performs as a unit in its environment. The concepts of regulative, extractive,
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48 distributive and responsive capability are employed as criteria to assess how a system is performing within its environment, how it is shaping its environment, and how it is being shaped by the environment as well.
The structural functional analysis was first experimented in the biological and mechanical sciences as part of systems analysis. It was adopted as a mode of analysis in Sociology and
Anthropology. It was developed for political analysis by Gabriel Almond (Haralambos and
Heald, 1980). According to Varma (cited in Okolie, 2003), structural functionalism revolves around two main concepts, namely, functions and structures, on the basis of which Varma raised three basic questions - (1) what basic functions are fulfilled in any given political system? (2) by what structures? and (3) under what conditions? He stresses that while functions deal with the consequence (i.e. involving objectives as well as processes) of patterns of actions, structure refers to the arrangements within the system, which performs the functions.
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Source: Gingrich, P. (1999)
Although Comte may be defined as a structural-functionalist, the perspective was developed primarily through the work of Emile Durkheim, who emphasized the central role that moral consensus plays in maintaining social order and creating an equilibrium or a normal state of society. The basic assumption of the structural functional framework is that all systems have
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50 structures which can be identified; and those structures perform specific set of tasks if they are to remain in existence and maintain their relevance to the system. Political systems are compared in terms of the manner in which structures perform the expected functions in society. All political systems are therefore perceived to perform two basic functions – input and output functions. Input functions are political socialization and recruitment; interest articulation; interest aggregation; and political communication; while output functions are rule making; rule application; and rule adjudication.
Source: Gingrich, P. (1999)
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The structural functional model is useful to the study in that it captures the basic elements of the anticorruption drive in Nigeria which include crimes, outrage and punishments hat invariably lead to reduction in economic and financial crimes in Nigeria. Furthermore, it enabled the researcher to establish the relevance of the structures created by government to eradicate corruption in the whole system. The structural functionalism as a broad perspective in the social sciences which addresses social structure in terms of the function of its constituent elements (i.e. norms, customs, traditions and institutions), when applied, assisted the researcher to analyze and establish effectiveness and/or ineffectiveness of the EFCC; constraints of the Act that established the anti-graft agency; and its application of double standard in its fight against corruption in
Nigeria since its establishment in 2004.
3.2 RESEARCH DESIGN
A research design is a plan that guides the investigator in the process of collecting, analysing and interpreting observations. It is a logical model of proof that allows the researcher to draw inference concerning causal relations among the variables under investigation. It also defines the domain of generalizability, that is, whether the obtained interpretation can be generalised to different situation (bailey 1978: 19, Nnabugwu 2006:100). Obasi (1999) delineated two types of research design: survey research design and experimental research designs. He further sub-divides the survey research design into descriptive and ex-post facto research designs.
This study is based on the ex-post facto research design in which the hypothesis testing involves observing the dependent and independent variables at the same time because the effect of the former on the latter have already taken place before the investigation. Kerlinger (1977) defines the ex-post facto design as a form of descriptive research design in which an independent
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52 variable has already occurred and in which an investigator starts with the observation of a dependent variable. He then studies the independent variable in retrospect for its possible relationship to and effects on the dependent variable. Cohen and Manion (1980) defined the ex- post facto research design as those studies which investigate possible cause-and-effect relationships by observing an existing condition and searching back in time for possible causal factor. This research design is represented thus:
O1...... X...... O2
With the ex-post facto, testing the performance of economic and financial crimes commission in enforcing its laws O1, and observing reduction of economic and financial crimes.
3.3 HYPOTHESES i. The immunity of public office holders hindered the effective enforcement of economic
and financial crime laws by the Economic and Financial Crimes commission in Nigeria. ii. The arrest and prosecution of corrupt government officials by the Economic and Financial
Crimes Commission (EFCC) reduced the incidence of corruption among government
official in Nigeria.
3.4 METHOD OF DATA COLLECTION
This study is based on the qualitative data generation technique. Essentially, there are three major sources of data for a qualitative research study – interviews, observations, and documents. The data collection strategy used is determined by the question of the study and by determining which source(s) of data will yield the best information with which to answer the question (Merriam, 2002:2). The data for this study were sourced mainly from documents. The strength of document as data source lies with the fact that they already exist in the situation; they do not intrude upon or alter the setting in ways that the presence of the investigator might. Nor
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53 are they dependent upon the whims of human beings whose cooperation is essential for collecting data through interviews and observations (Merriam, 2002:13).
Cozby and Bates (2012) observed that qualitative research focuses on people behaving in natural setting and describing their world in their words. In essence, qualitative research emphasises collecting in-depth information on a relatively few individuals or within a very limited setting. Green (2005) on his part noted that qualitative methods are characterised as those that aim to explore meaning and produce non numerical data. In effect, qualitative research according to him depends upon not numerical but conceptual analysis and presentation. Again he noted that it is use where it is important to understand the meaning and interpretation of human social arrangements such as hospitals, clinics, forms of management or decision making.
Qualitative methods are intended to convey to policy makers the experiences of individuals, groups and organisation that may be affected by policies.
The method aims to gather an in-depth understanding of human behaviour and the reasons that govern such behaviour. The qualitative method investigates the why and how of decision making, not just what, where, when. Hence, smaller but focused samples are more often needed, rather than large samples. There are certain attributes to this method: First, in qualitative research, cases can be selected purposefully, according to whether or not they typify certain characteristics or contextual locations. Second, the researcher’s role receives greater critical attention. This is because in qualitative research the possibility of the researcher taking a
‘neutral’ or transcendental position is seen as more problematic in practical and/or philosophical terms. Hence, qualitative research reflects on the role of the researcher in the research process and makes this clear in the analysis. Third, qualitative data analysis can take a wide variety of forms, and approaches analysis holistically and contextually, rather than being reductionist and
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54 isolationist. Systematic and transparent approaches to analysis are therefore regarded as essential for rigour, which forms part of the justification for the application of this method.
3.5 METHOD OF DATA ANALYSIS
The data for this study shall be analyzed using qualitative, descriptive analysis. This involves logically breaking down the data collected to draw inferences about the relationship between the variables that are of interest the researcher on the particular occasion. In qualitative research, data analysis is simultaneous with data collection. That is, one begins with analyzing of data with the first interview, the first observation, the first document accessed in the study.
Simultaneous data collection and analysis allows the researcher to make adjustment along the way, even to the point of redirecting data collection, and to “test” emerging concept, theme, and categories against subsequent data. To wait until all data are collected is to lose the opportunity to gather more reliable and valid data; to wait until the end is also to court disaster, as many a qualitative researcher has found himself or herself facing hundreds of pages of transcripts or field notes without a clue where to begin. With that caveat in mind, data analysis is essentially an inductive strategy. One begins with a unit of data (any, meaningful word, phrase, narrative, etc) and compares it to another unit of data, and so on, all the while looking for common patterns across the data (Merriam, 2002:14).
The choice of qualitative descriptive analysis is informed by the character of data with which we have to grapple, which is largely qualitative, and by the fact that it enables us arrive at a valid argument and make valuable deductions in respect of the nature of enforcement of economic and financial crime law and the reduction of economic and financial crime in Nigeria.
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3.6 LOGICAL DATA FRAMEWORK (L.D.F)
S/N Hypotheses Variables Main indicators Data source Method of Data Method of Collection Data Analysis
1. The arrest and X X prosecution of Report of cases in 2003 was 425, report of cases in 2004 was corrupt The arrest and 233, report of cases in 2005 was 658, report of cases in 2006 Secondary Qualitative Descriptive government prosecution of was 2590, report of cases in 2007 was 3280, report of cases Source of method of data method of officials by the corrupt in 2008 was 3892, report of cases in 2009 was 5568, report Data Such as: collection Analysis Economic and government of cases in 2010 was 5202, report of cases in 2011 was 4534 Books, Financial officials 2003- (EFCC 2012) some of the victims of these cases are Adenike Crimes 2012 Grange (Former Minister of Organizational Commission health), Iyabo Obasanjo Bello (Serving Materials, (EFCC) Senator), Gabriel Aduku (Former Minister of Journals. reduced the Health), Kenny martins (Police Equipment incidence of Fund), Prof. Babalola Iymishade (Former corruption Minister of Aviation), Mallam Nasir El-Rufail (Former among Minister of Federal Capital Territory) government official in Y Nigeria. Establishment of decrease for reduction . The number of cases accepted for investigation in 2003 was 401, in 2004 it increased to 674, in 2005 it increased to 1009, in 2006 it increase to 1296, in 2007 it increased to1640, in 2008 it increase to 2044, in 2009 it increased to 2784, in 2010 it reduced to 2545 while in 2011 it also Y reduced to 2240. Reduction in the The number of cases under investigation in 2003 it was incidence of 248, in 2004 it increased to 425, in 2005 it increased 628, corruption in 2006 it increased to 830, in 2007 it increased to 1166, in among 2008 it increased to1166, in 2009 it increased to 1359, in government 2010 it reduced to 1930, in 2011 it also reduced to 1817. official in Establishment of decrease for reduction of number of cases Nigeria 2003- concluded in 2003 83 cases were concluded, in 2004 it 2012 increased to 233, in 2005 it increased to 387, in 2006 it increased to 465, in 2007 it increased to 474, in 2008 it increased 587, in 2009 it increased to 647, in 2010 it increased to 671 while in 2011 it reduced to 450.
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LOGICAL DATA FRAMEWORK (L.D.F)
S/N Hypotheses Variables Main indicators Data source Method of Method of Data Data Analysis Collection
The immunity of public X X office holders hindered Immunity of President. immunity of Vice the effective Constitutional immunity of President. Immunity of Governors. Immunity of Secondary Qualitative Descriptive Deputy Governors. Inability of EFCC to arrest enforcement of public office holder in Source of Data method of data method of Nigeria and prosecute governors, such as Peter Odili of Such as: Books, collection Analysis economic and financial River State, Orji Uzor Kalu of Abia, Ayo Fayose crime laws by the Organizational of Ekiti, James Ibori of Delta, Igbinedion of Edo, commission in Jolly Nyame of Taraba state, Joshua Dariye, etc. Materials, Journals. combating economic and accused of financial and economic crimes financial crimes in
Nigeria. Y Y • Corrupt Practices and the Money Laundering Effective enforcement of Act, 2004 • The Economic & Financial Crimes Commission Economic and financial (Establishment) Act, 2004. crime laws in Nigeria • The Procurement Act, 2007. • The Independent Corrupt Practices and Other Related Offences Commission (ICPC) Noble and desirable these efforts were, either they were strangled due to inadequate enabling laws and regulations or neglected for apparent lack of commitment on the part of stakeholders to fight corruption in high places (Ribadu, 2004a).
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CHAPTER FOUR
ANTI-CORRUPTION LAWS AND THE IMMUNITY OF PUBLIC OFFICIALS IN
NIGERIA
The scope of corruption in Nigeria has expanded significantly since the administrations of Generals Ibrhahim Babaginda and Sani Abachi. For some scholars corruption in Nigeria has moved from prebendalism to predation in which office holders and public officials try to repay their supporters, family members, cronies, ethnic group members etc. with sums of money, contracts or jobs (Lewis, 1996). Corruption is blamed for the downfall of the first republic 1960
– 1966, and the second republic 1979 - 1983. Part of the reason for the burgeoning of corruption is the reliance of the economy on oil, which encourages rent-seeking and corruption activities.
The US Senate Kerry Report (1993) noted a link between oil and corruption in Nigeria. For example the reported among other things noted that under- or over-invoicing of imports and exports was common practice, especially in the Nigerian National Petroleum Corporation
(NNPC). There are also reports that about £212bn from oil money has been looted from the country’s treasury by past and present leaders, and that EFCC was helping to combat an estimated £12bn which is annually stolen from state coffers (Independent Newspaper, 14 August
2006). In Nigeria, it is a common practice for contracts to be inflated because public officials factor in kickbacks which are usually paid upfront before the completion of the contracts. Graft continues to prevent the judiciary from functioning adequately. There is a widespread perception that judges are easily bribed or ‘settled’. For example, there are long delays and frequent requests from judicial officials for small bribes to expedite cases (US Department of State, 2005). In
2005, the court Chief Registrar of the Federal Capitol Territory, Abuja was charged N37 million for fraud and money laundry (EFCC, 2005). There are numerous allegations that legislators both
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58 at the national and state levels accept bribes and favors from the executive branch to facilitate the passage of bills favorable to the executive branch.
Nigeria has been vulnerable to official venality. It has been projected by the EFCC that between 1960 and 1999 about £220 billion or $380 billion has been plundered and squandered by public officials in Nigeria (Ribadu, 2007). This is more than six times the amount the US provided for the reconstruction of post-World War II Europe under the Marshall Plan. During the early months of General Sani Abacha’s administration, an official report indicated that an estimated $12,200 million had been side-tracked to off-budget accounts from 1988 through 1993, when General Ibrahim Babaginda was the Head of State (Lewis, 1996). TI’s Global corruption
Report 2004 also published General Sani Abacha (1993–1998) among the top ten presidents that had allegedly embezzled between $2 – 5 billion (TI, 2004). The 2006 brawl between President
Obasanjo and the vice president over corruption is indicative of how high corruption has permeated into the Nigeria society.
TI has consistently ranked Nigeria very low. For examples, in 2006, Nigeria was ranked146 with 2.2 corruption perception index (CPI) score out of 163 and in 2007, it was ranked 148 with 2.2 score (TI, 2006, 2007). According to TI, low scores in the CPI is an indication that the public institutions are heavily comprised. Furthermore TI (2005) noted that in
Nigeria, more than 50 percent of bribes were directly asked for, while 60 percent were offered to avoid problems with authorities; and more that 40 percent offered bribe to obtain access to a service they were entitled to. According to the Independent Advocacy Project (IAP) (2007), corruption index, the most corrupt sectors in Nigeria were the Nigerian Police Force, Power
Holding Company of Nigeria, Education ministry and the Customs and Excise Department.
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The most worrisome aspect is that corruption is deepening and taking new dimensions, especially among the states in Nigeria. The September 2006 report of the EFCC indicated that corruption among states has reached a tragic stage where some state governors were stealing, looting state treasuries and fronting members of their families and relatives with state money to establish their own private businesses. For example, the governor of Abia state, Orji Kalu, was alleged by the EFCC to have siphoned government funds to the tune of N35 billion using his wife, mother, daughter, and brothers as fronts to establish a business empire which included Slok
Airline, Slok Pharmaceuticals, and newspaper house (THISDAY, 2006).
Immunity from civil and criminal prosecution is granted to elected executive office holders during their tenure in office under the Nigerian constitution. Given the allegation of corrupt practices against some of these office holders there have been calls for the removal of the immunity conferred on them by the Constitution, so as to make way for their possible prosecution in court while in office.
4.1 ANTI-CORRUPTION LAWS IN NIGERIA
The Independent Corrupt Practices and Other Related Offences Commission (ICPC)
On 13 July 1999, President Olusegun Obasanjo submitted an executive bill titled Corrupt
Practices and Other Related Offences Bill to the National Assembly for passage into law. This was barely six weeks after he was sworn into office. The bill aimed to outlaw all forms of corruption in the public sector and give legal backing for the creation of the ICPC to coordinate the war against corruption in Nigeria. Even though the bill was not the first of its kind in Nigeria and represented a sort of conformity with Nigeria’s 1999 Constitution, which provides that “the state shall abolish all corrupt practices and abuse of power” (Federal Republic of Nigeria 1999), it nevertheless raised considerable concern in several political quarters.
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The first concern came from the federal legislature, which raised at least two major objections to the anti-graft law as proposed by President Obasanjo. The first objection concerned some provisions of the bill, which the lawmakers said constituted grave violations of the fundamental rights of Nigerians as guaranteed by the 1999 Constitution. This was specifically in respect to the powers of the commission to ‘invade’ the privacy of suspects in the course of its investigation. Secondly, the National Assembly was also not comfortable with a bill which granted the President, the Vice-President, the state governors and their deputies immunity from investigation and prosecution on grounds of corruption, at least while they were in office. Based on these objections, the two federal legislative chambers, the Senate and the House of
Representatives, refused to pass the bill in its original version, choosing instead to subject it to their revision, ejecting the clauses which they had identified as ‘anti-democratic’ or not in conformity with universally accepted democratic principles. The lawmakers also made sure that they inserted some clauses to ensure that the President, the Vice-President, state governors, and deputy state governors would not be immune to investigation (The News, 2001: 18). After stormy and lengthy debate, spanning a full year (July 1999 to June 2000), the Corrupt Practices and
Other Related Offences Act 2000 was finally passed into law by the two federal lawmaking houses as constitutionally required. The law was passed on 13 June 2000. The new anti- corruption law, which effectively paved the way for the inauguration of the ICPC, was subsequently signed into law during a very elaborate ceremony by President Olusegun Obasanjo, also on 13 June 2000 (The Guardian, 2002: 37).
The changes introduced by the National Assembly did not change the character of the
ICPC law in any fundamental way. The ICPC Act still retained almost all of the offences proposed by the original executive bill. Similarly, the powers and structures of the commission,
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61 as envisaged in the original bill, remained basically unchanged. In consequence, as soon as the anti-corruption Act was signed into law, and especially after the commission was inaugurated, criticism and opposition began to mount concerning certain provisions of the Act that conferred on the body powers that were deemed to be unconstitutional or a gross violation of the principles of federalism (The Guardian, 2000:19).. Of particular interest here was the notion of ‘a public officer’, which the Act in its interpretation section defined as:
… a person employed in any capacity in the public service of the federal, state or local government, public corporations and 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 including judicial officers and serving magistrates in area/customary courts or tribunals. (Federal Republic of Nigeria 2000).
The implication of the above provision in the Act was to bring public officers employed in the services of the states and local governments directly under a body (as far as corruption probe is concerned) which is essentially a ‘federal agency’, being the creation of the central government. The question then arose:
Can a state governor, for example, who in any case enjoys constitutional immunity against criminal prosecution while in office, be investigated and prosecuted through an agency of the federal/central government on the strength of Section 52 (27) of the Act? This section provides that when a petition against a governor or his deputy or the President or the Vice-President is received by the commission, they can be investigated, and where they are found to have contravened any section of the Act, the commission can call on the Chief Justice of the Federation to institute an independent council to investigate the indicted official, the report being then forwarded to the state House of Assembly or the National Assembly (in the case of the President and his Vice- President), which have powers to deal with the matter according to the relevant constitutional procedures (which may involve impeachment) if the grounds exist to do so.
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Some articulate sections of the Nigerian population, including leading legal luminaries, vehemently opposed this provision, which they considered a gross violation of the spirit of federalism as guaranteed by the Nigerian Constitution. Prominent among these legal experts were two foremost constitutional lawyers, Chief Rotimi Williams and Professor Ben Nwabueze, who spearheaded the opposition to sections of the anti-graft Act. Chief Williams noted that the anticorruption law “paid no regard whatsoever to the limited scope of the legislative powers conferred on the National Assembly by the Constitution”, while arguing that the National
Assembly cannot make provisions for dealing with corruption throughout Nigeria (ThisDay,
2000: 4). He recalled that in the past, the attempt of the federal legislature to give itself power to set up a tribunal of inquiry during the Balewa administration (First Republic, 1960-66) was nullified by the courts, expressing the hope that the same fate would befall the anti-graft law.
Professor Nwabueze was more forceful and critical in his arguments:
… more than being an infraction of the Constitution, it is subversive of one of the foundation pillars of Nigeria’s governmental system, federalism, whose two cardinal principles it totally disregards, namely, the principles of the autonomy of the state government vis-à-vis the federal government and the exclusiveness of the power of each over certain matters as demarcated in the Constitution. (The Guardian, 2000: 9).
For Nwabueze, the Act “read like a Decree of the Federal Military Government, of which
General Obasanjo was head from 1976-1979, a government with powers unencumbered and unlimited by the autonomy of the State governments, by a federal system of division of powers or by a supreme constitution” (The Guardian, 2000:9). In the opinion of the learned scholar, therefore, “President Obasanjo’s anticorruption crusade deserves our applause and full support, but not at the expense of the cardinal principles of our federal system on which depends, to a considerable extent, the stability and unity of the country” (The Guardian, 2000: 9).
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It was against the background of these harsh criticisms, especially from renowned legal experts, that fears were raised about the possibility that such legal loopholes or shortcomings might deadlock the application of the Act and, by extension, the operations of the anti-graft commission. Fears were further raised when, in a further challenge to the powers of the commission, Ondo State, a state in southwest Nigeria, led eight other states in mounting a challenge in early 2000 in Nigeria’s highest court, the Supreme Court, challenging the constitutional powers of the federal government to extend its anti-corruption dragnet to Ondo
State, or to any other state for that matter. At the Supreme Court, Ondo State and the other allied states, through their lawyer, Chief Rotimi Williams, raised two fundamental questions for determination before the court. One was whether or not the National Assembly can competently enact laws in furtherance of, or in effectuation of, Section 13(5) by virtue of Item 60 (a) of Part
One of the exclusive legislative list, in the second schedule to the 1999 Constitution. The second was whether or not the provisions of the Act (the anti-graft law of 2000) had impeded, encroached upon, or removed the legal rights of the plaintiffs, and if so, whether the provisions of the Act were thereby rendered unconstitutional.
This legal challenge created considerable problems for the ICPC, as many state governments refused to recognise the institution’s existence. Ondo State was, of course, one of them. The state had earlier commenced legal proceedings against one of its top functionaries, accused of defrauding the state. The accused, a commissioner (equivalent to a cabinet minister), tried at the Ondo State Chief Magistrate Court, was alleged to have cheated the state by inflating a contract from N12 million to N35 million. And barely three days after the case was reported in the media, another senior official of the state government was indicted for corrupt practices and accused of paving the way for the grounding of the fleet of buses of the state-owned Owena
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Mass Transport Corporation (OMTC). The managing director of the transport corporation was subsequently ordered to return N8.7 million to the government’s coffers, another full-time director of the company was ordered to refund N230,000, and yet another official was ordered to refund N100,000 (The Punch, 2001:18). Surprisingly, when the ICPC expressed interest in the case, in line with its legal responsibilities as spelt out in its enabling law, the Ondo State government refused to transfer the accused commissioner’s case file for further investigations. In fact, while the legal tussle at the Supreme Court lasted, Ondo State government refused to cooperate with the commission and even went ahead to bar the anti-graft agency from operating in Ondo State.
This kind of open hostility towards the ICPC also came from other states. Immediately after he was sworn into office as chairman of the ICPC, Justice Mustapha Akanbi sent letters to each of the 36 state governors to inform them about the operations of the commission and solicit their co-operation in this regard. Some of the state governments in their reply “said the commission was an unconstitutional body”, while others promised to respond to the commission’s letter in due course but never did (Vanguard, 2002:16). Thus, even if the critics and opponents of the anti-graft law were not rejecting the law in its entirety or opposing the war against corruption in the country under the Fourth Republic, their actions and utterances were enough to throw a spanner in the works of the commission, which became moribund, so to speak, while the legal tussle lasted.
On 7 June 2002 the Supreme Court, in a highly celebrated and landmark ruling, delivered its verdict in favour of the ICPC, thereby ensuring that the commission made a triumphant exit from the legal shackles which were threatening to paralyse the war against corruption. After reviewing the arguments of the proponents and antagonists, as it were, the Supreme Court ruled
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65 that the anticorruption Act was validly enacted by the National Assembly. Applying the Blue
Pencil Rule, it also ruled that only offending sections, viz. Section 26(3) and Section 35 of the
Act, were invalidated. Section 26(3) prescribes a time frame within which all prosecution of criminal offences under the Act must be concluded. The section was struck down because it
“infringes on the principle of separation of powers and therefore is unconstitutional” (The
Guardian, 1 August 2000: 9). Section 35 was struck down because it empowers the anti-graft commission to arrest and detain any person who failed to obey a summons directed to him “until the person complies with the Summons” (The Guardian, 2000: 9). This Section implies that a person may be detained indefinitely, contrary to the provisions of the 1999 Constitution.
The authority of the Attorney General of the Federation or any person authorized by the anti-corruption commission to lawfully initiate or authorise the initiation of criminal proceedings in any court in Ondo State (a fortiori any part of the Federation), in respect of offences created by the Act, was also upheld. By this ruling, the court sifted the good from the bad.
Armed with this final and conclusive judgment in its favour, the anti-corruption commission was now expected to forge full-speed ahead in its war to rid the country of corrupt practices. The powers and responsibilities of the commission, as defined by the enabling law – in this case, The Corrupt Practices and Other Related Offences Act 2000 – are far-reaching.
Before the enactment of the 2000 Act, there were other laws which dealt with corrupt practices in the country. These laws included the Criminal Code (which is applicable in the southern states) and the Penal Code (which is applicable in the northern states), the Recovery of
Public Property (Special Military Tribunal Act Cap. 389, Laws of the Federation of Nigeria
1990, as amended in 1999), the Failed Banks (Recovery of Debts and Financial Malpractices in
Banks) Decree 1994 (as amended in 1999), and the Code of Conduct Bureau and Tribunal Act,
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Cap. 56, Laws of the Federation of Nigeria 1990. However, as varied as these laws were, they were believed to be outdated, to the extent that there are now modern methods of corruption used by the perpetrators of corruption which were not contemplated by the lawmakers at the time the older statutes were enacted. Detecting these modern methods of corruption, it was thought, required state-of-the-art legislation. Furthermore, among other issues, these statutes were said to be scattered rather than grouped together conveniently and were not comprehensive (Onuogu
2002). The anti-corruption Act of 2000, therefore, was able to bring about some orderliness in the laws, putting them in a more comprehensive document, and to also fill the lacuna created by the inadequacy of the existing laws.
But what exactly does the Act say about the scope of the ICPC’s powers? And how sufficient are these powers? It will not be necessary to examine every aspect of the Act here; we will attempt to highlight some of the most important provisions only, with emphasis on those provisions that touch on the powers and responsibilities of the commission. To begin with, the
ICPC Act’s definition of corruption, as we have noted, “includes bribery, fraud and other related offences”. It also defines gratification, under Section 8, to mean “money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, or any other similar advantage, given or promised to any person with intent to influence such a person in the performance or non-performance of his duties”. The aim of these definitions is obviously to catch within the Act’s ambit all forms of dishonesty related to corruption and allied offences. The interpretation section is also important because it guides the court in its interpretation of certain words and phrases used in the Act, while assisting the commission in determining what conduct constitutes corrupt practice.
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The powers and responsibilities of the commission are found in Sections 6(a) to (f) of the
Act, and they include the following: To receive and investigate complaints from members of the public on allegations of corrupt malpractices and, in appropriate cases, prosecute the offenders; to examine the practices, systems, and procedures of public bodies, and where such systems aid corruption, to direct and supervise their review; and to instruct, advise, and assist any officer, agency, or parastatals on the ways fraud or corruption may be eliminated or minimised by them.
The ICPC was also empowered to advise heads of public bodies of any changes in practices, systems, or procedures – compatible with the effective discharge of the duties of public bodies – that would reduce the likelihood or incidence of bribery, corruption, and related offences, educate the public on and against bribery, corruption, and related offences, and enlist and foster public support in combating corruption (Federal Republic of Nigeria 2000a).
The ICPC, as we have said, was also to hire its own staff and organize them in the manner it deemed fit. To achieve this goal, the commission created various departments and committees, which were charged with the responsibilities of carrying out different aspects of its duties. For instance, pursuant to Section 6 of the Act, the board of the commission was organized into three general committees.
The first dealt with investigation and prosecution; the second dealt with the study of the systems, practices, and procedures at parastatals, public institutions, and the like; and the third took charge of public enlightenment and education. Each committee has a member of the commission as its chairman. The chairman of the ICPC was the chairman of the investigation and prosecution committee during the period under review (Tell Magazine, 2002:33).
Furthermore, the Act in Sections 8-26 created a wide range of punishments for offences which include acceptance of gratification by an official, corrupt offers to public officers (by private
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68 individuals, for example), corrupt demand by persons, and offences related to corrupt and fraudulent acquisition of property. Others are penalties for offences committed through postal systems, deliberate frustration of investigation by the commission, making false statement or returns, gratification by and through agents, bribery of public officers, the offence of using office or position for gratification, bribery in relation to auction, bribery for providing assistance in regard to contracts, failure to report bribery transactions, dealing with, using, holding, receiving, or concealing gratification, making of statements which are intended to mislead the commission, and conspiracy. The penalties for these offences ranged between one and ten years’ imprisonment, with the option of a fine.
In order to eliminate all forms of corruption, especially the modern methods of perpetration, and render the commission and its fight against corruption more effective, the Act also contained provisions or unique clauses: One provision limits the time within which offences of corruption can be tried to 90 working days, with a proviso to extend the time when good grounds exist (Section 26(3));3 another provides that special judges of the High Court be designated to try only corruption cases (Section 26(2) and Section 61(3)), in order to accelerate the speed of trials, bearing in mind the snail speed of the Nigerian judicial system; another provision requires the protection of witnesses and their evidence (Section 64). Others are the clauses allowing for presumption in certain cases, notably in connection with giving or receiving of gratification, which can be presumed to have occurred for a corrupt motive once it is proved that it had been given or received in the first place (Sections 53 and 54); a clause stating that evidence shall not be admissible to show that gratification is customary in any profession, trade, vocation, or calling, or on a social occasion (Section 60). There were also provisions which provided for punishment for the following: Inflation of the price of goods or services above the
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69 prevailing market price or professional standard (Section 22(3)); the award of contracts without budgetary provisions, approvals, and cash backing (Section 22(4)); the transfer or the spending of money for a particular project or service on another project (Section 22(5)); and, of course, the failure to report bribery transactions (Section 23(3)).
Sections 27 to 42 of the Act grant the commission wide powers to perform and enforce these provisions, including the powers to investigate, search, seize (any property which is the subject of investigation), and arrest (any suspect), if it deems this to be necessary in its investigations. These powers may be exercised upon the receipt of report(s) made orally or in writing by any member of the public to an officer of the commission. In practice, the investigation department is assigned the responsibility to investigate any such report, and after investigation, cases are referred to the prosecution department if there are sufficient facts to prosecute. Officers of the commission investigating cases enjoy some immunity and are conferred with special powers under Section 5(1) of the Act, which provides that “subject to the provisions of this Act, an officer of the commission when investigating or prosecuting a case of corruption shall have all the powers and immunities of a police officer under the Police Act and other laws conferring power on the police, or empowering and protecting law enforcement agent”.
In theory, prosecution of an offence under the ICPC Act is supposed to be initiated by the
Attorney General of the Federation or any person or authority to whom he delegates this authority (Section 26 (2)). However, Section 61(1) of the Act also states that every prosecution for an offence under the Act or any other law prohibiting bribery and corruption will be deemed to be performed with the consent of the Attorney General.
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The comprehensive nature of the Act – that is, the wide scope of offences created under it
– appeared to be intended to bring within its ambit all forms of dishonesty related to corruption and allied offences, taking into consideration Nigeria’s past experiences. Similarly, the wide powers granted to the commission by the Act seemed not to be a mere accident, but a deliberate intention to make the commission not just a dog that barks, but also one that bites. Indeed, in the context of a legal framework for combating corruption, there appeared to be adequately worded provisions in the Act for tackling most aspects of corruption pervading public and business life in Nigeria.
The Economic and Financial Crimes Commission (EFCC)
The EFCC was first proposed by a 2002 law, the Economic and Financial Crimes Act
2002, but came into existence only on 11 April 2003. Unlike the ICPC, the birth of the EFCC witnessed little or no controversy. Although its enabling Act contained far more ‘draconian’ powers than those of the ICPC, its passage in the National Assembly still proceeded almost without any political challenge. There are two explanations for this paradoxical situation. Firstly, being legislation that was more or less imposed by powerful international interests, it could not have faced the same kind of political opposition or legislative scrutiny which the ICPC Act attracted. Secondly, and perhaps more importantly, the EFCC bill was not considered a threat by
Nigeria’s political class, who erroneously interpreted it as a weapon against fraudsters in the banking industry or individuals specialising in advance-fee fraud (commonly known as “419” in
Nigeria).9 It was in an open admission of this fact that a former Speaker of Nigeria’s lower legislative house, the House of Representatives, Ghali Umar Na’abba, said that the “EFCC was meant to fight 419 and money laundering. It was never intended to be an institution to fight corruption in public places. That duty is for ICPC” (ThisDay, 6 February 2006). Thus, right from
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71 the beginning, the EFCC enjoyed far higher financial and political support from the executive arm of government and indeed the international community. This level of support translated into a more robust administrative structure and a confident leadership willing to step on toes on some occasions.
4.2 POWERS AND RESPONSIBILITIES OF THE EFCC
Just like the ICPC, the powers and responsibilities of the EFCC are contained in different sections of its enabling Act. According to the Act, the commission is specifically charged with the responsibility of conducting investigations into crimes of a financial and economic nature, such as 419, money laundering, counterfeiting, capital and market fraud, cyber crimes, credit- card frauds, contract frauds, and terrorism and terrorism financing, as outlined in Section 6. The commission can equally enforce other previously existing legislation touching on economic and financial crimes. The EFCC is also enjoined in Section 6 of the Act to take all necessary measures to prevent and eradicate economic and financial crimes in Nigeria. This will include identifying, monitoring, freezing, or confiscating proceeds (funds and properties) from criminal activities such as terrorism and financial and economic crimes, and collaborating with similar institutions abroad, especially in the area of research, investigations, exchanges of personnel, international mutual legal assistance (for extradition), and prosecutions.
Similarly, the EFCC is expected to promote the coordination of, and maintain close ties with, all Nigerian institutions charged with investigating economic and financial crimes, such as the Police, Ministry of Justice, Customs, Immigration, Prisons, Central Bank of Nigeria, and
National Drug Law Enforcement Agency (NDLEA), to mention just a few. Another important task assigned to the commission is to educate and enlighten the general public and solicit their support for the war against economic and financial crimes.
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Apart from its powers to coordinate all the other regulatory and security agencies involved in the eradication of economic and financial crimes, which permits it to assume a sort of ‘position of superiority’ relative to the concerned institutions, the EFCC differs from the ICPC in at least two important respects relative to the scope of its powers. In the first place, it did not misinterpret its liberty to commence investigations and even prosecutions – if and when it had reason to suspect that an individual or institution had committed or had infringed upon any of the economic and financial crimes’ laws – by waiting to receive a formal petition, as was the case with the ICPC. This meant that the EFCC was able to act in a more proactive manner to bring corrupt individuals to book before they had sufficient time to cover their tracks. The second point is that the powers of the EFCC are retroactive, in the sense that offences committed in the past
(before the establishment of the commission) can be investigated, and any person suspected of illegal enrichment or illicit financial transaction and – better still – any person possessing unexplained wealth relative to his legitimate income can be brought to court. Thirdly, the powers of the EFCC cover both the private and the public sectors. These wide powers were complemented by fairly broad administrative structures.
In comparison with other institutions charged with eradicating corruption and crime,
(ICPC, Code of Conduct Bureau, NDLEA, NAFDAC, etc.) the EFCC distinguishes itself not only by the extensive scope of its powers but also by its inclusive administrative structures. As is the case with the ICPC, members of the board of the EFCC, including its chairman (an executive chairman), must be very experienced personalities with impeccable character, nominated by the
President and then confirmed by the Senate. However, apart from the EFCC chairman, who must possess at least 15 years of professional experience acquired in a security organization, the other members of the commission must include the heads, or their representatives, of the Central Bank
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73 of Nigeria (CBN) and the Ministries of Foreign Affairs, Finance, and Justice. Others included are from the NDLEA, National Intelligence Agency (NIA), State Security Services (SSS), Corporate
Affairs Commission (CAC), Securities and Exchange Commission of Nigeria (SEC), Nigerian
Deposit Insurance Corporation (NDIC), Nigerian Insurance Commission (NIC), Nigerian Postal
Service (NPS), National Communications Commission (NCC), Nigerian Customs Service,
Immigration, and the Nigerian Police Force.
The chairman is assisted by a secretary general, who is the head of administration, and a team of six directors in charge of each of its departments: Organizational Support, Financial
Crimes Intelligence, Advance-Fee Fraud and Other Economic Crimes, Intelligence, Enforcement and General Operations, and Prosecutions and Legal Council and Training School. The EFCC chairman is also placed in charge of a large bureaucratic structure, which in 2006 included some
800 personnel. The figure was about 500 during its first year of existence. The EFCC’s staff profile was thus better than that at the ICPC. These permanent employees were housed in its imposing administrative headquarters in the federal capital, Abuja, and regional offices (in Lagos and Port Harcourt) which became functional in 2005.
The size and effectiveness of any organization depends largely on the level of funding.
While comprehensive and comparative data on the finances of both the EFCC and the ICPC are unavailable, anecdotal evidence points to a superior level of finance for the EFCC. According to our data, the EFCC received over N700 million ($5 million) in public subvention during its first year and N1.1 billion ($8 million) in its second (ThisDay, 2005). By contrast, the ICPC received only about N500 million ($3 million) on average between 2000 and 2004.
What accounted for this huge gap in funding between the EFCC and the ICPC? The different approaches to sourcing for funds by the two organizations were partly responsible for
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74 this wide gap in funding. While the EFCC enthusiastically welcomed funding from a variety of local (usually public) and international institutions, the ICPC on the other hand accepted assistance only from international organizations, which must be in non-monetary form (for example, training of ICPC personnel, supply of equipment, and payment for ICPC programmes).
According to ICPC officials, this is to protect the integrity of the organization and avoid putting it in an awkward position when the anti-graft body is called upon to investigate an official of such donor organizations. Similarly, outside the provision that required the National Assembly to appropriate funds for its operations, the ICPC Act is virtually silent on the question of other sources of funding for the commission. On the other hand, Section 35(2) of the EFCC Act provides that in addition to statutory allocation to be approved by the National Assembly, “the
Commission may accept gifts of land, money or other property whether within or outside Nigeria upon such terms and conditions, if any, as may be specified by the person or organization making the gift provided that the terms and conditions are not contrary to the objectives and functions of the Commission”
4.3 ACTIVITIES OF EFCC SINCE CREATION
The EFCC is a legal, prosecutory and investigative agency created by the Nigerian government to combat corruption. Within its short existence, it has at least made a significant start by challenging Nigerians to send any information on any government officials to it so that it can commence investigation. Nigerians have responded and those efforts are paying dividend.
Following its establishment, the EFCC swung into action by launching the “Operation
Redemption” intended ‘to get all economic and financial criminals out of business and behind bars’ (Ribadu, 2003). Since then, the EFCC has been involved in a number of investigations, arrests and detention resulting in indictments, return and recovering of stolen money and
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75 imprisonments. The agency has been responsible for a number of high profile investigations such as those involving the former inspector general of Nigeria Police, Mr. Tafa Balogun who stole more than $121 million and was jailed for six months, fined $30,000, and property worth $150 million seized (Egbuonu, 2011) and the arrest of Hon. Morris Ibekwe (Imo State) for allegedly obtaining under false pretences, the sum of $300,000 from a German national and head of the
Munch System Organization Company (EFCC, 2003). Others include the former governor of
Lagos state, Major General Mohammed Buba Marwa, the former Chairman of the Nigeria Ports
Authority Mr. Bode George, Alhaji Bashir Dalhatu, the bribery scandal and fraud involving
National Assembly Committee members and the Minister for Education over budget, the former governor of Bayelsa state, Chief Depreye Alamieyeseigha, and the investigation of all state governors and local government officials as of December 2006. The 2006 indictment of the serving Vice President, Atiku Abubakar for abuse of office, fraud and embezzlement by both the
EFCC and Administrative Panel of Inquiry is indicative of how deep and pervasive corruption has permeated the Nigerian society. The list is in-exhaustive.
So far the EFCC has received 4,200 petitions on illegal corruption, investigated or investigating 1,200 cases and has 406 cases in the courts (Vanguard, 2006). After months of investigation of the petitions and allegations of corruption against 31 out of 36 states in Nigeria, the EFCC decided to indict 15 governors and gave a clean bill to only six state governors
(THISDAY, 2006). The EFCC’s indictments, arrests and reports on corruption involving high profile public officials are indicative of the distance high level public officials in Nigeria are willing to go to exploit, loot, steal, misappropriate and launder public money for personal aggrandizement instead of improving the wellbeing of the people. Prior to the 2007 elections, the
EFCC prepared a list of potential office seekers deemed corrupt and therefore unfit to contest
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76 any elected offices. This list was submitted to the political parties and the Independent National
Electoral Commission (INEC). An analysis of the list of unfit politician with respect to spread among the major political parties showed that Peoples Democratic Party (PDP) had the highest number of unfit political office seekers of 53 followed by All Nigeria Peoples Party (ANPP) with
39, Action Congress (AC) with 28, Peoples Progressive Alliance (PPA) with 10, Democratic
Peoples Party (DPP) with 5, and Alliance for Democracy (AD) with 1. With respect to spread among the states, Zamfara had 18, followed by Adamawa with 16, Taraba with 15, Abia with 12 and Bauchi with 10.
The EFCC in its short existence has made the following remarkable achievements in the fight against corruption:
• Recovered money and assets derived from crime worth over $700 million, and £3 million from
British government between May 2003 and June 2004 (EFCC, 2007), and in its first five years
(2003 – 2005) recovered over $500 billion (Egbuonu, 2011).
• Put over 500 suspects in custody, and prosecuted one of the world’s biggest fraud cases involving Nigerian fraudsters Mrs. Amaka Anajemba, Mr. Emmanuel Nwude and Mr. Nzeribe
Okoli who duped a Brazilian banker Mr. Nelson Sakaguchi about $242 million.
• Made restitution to victims of 419 frauds. For example in October 2005, the EFCC refunded the sum of $4.48 million to an 86 years old Hong Kong woman, Juliana Ching: money that was recovered from 419 scam investigation (Ribadu cited in HRW, 2011).
• Increased the revenue profile of Nigeria by about 20 per cent due to its activities in the Federal
Inland Revenue Service and the Seaports.
• Recovered revenue of over N20 billion from government, and billions of Naira to government in respect of failed contracts.
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• Reduced crude oil bunkering activities in the Niger Delta region through prosecution of persons involved and confiscation of ships (Ribadu cited in Human Rights Watch, 2011).
In its 2006 report to the Senate, the EFCC reported of progress resulting from its activities in the following areas:
• Recovered N100 billion assets from ex-governors and N55 million bribes in
2005 from committee members of the National Assembly given as PR to lobby for increase in education budget (www.utexas.edu/conferences/africa/ads/527.html).
• Recovered N200 billion from fraudulent bank officials, and $700 million from corrupt public officers who allegedly looted public funds (EFCC, 2007)
• Confiscated over 40 oil tankers engaged in crude oil bunkering
• Recovered $750 million from 419 gangs, and N50 billion worth of assets from the impeached governor of Bayelsa state, Chief Alamieyeseigha
• Recovered over N85 billion by the Due Process Office (www.efccnigeria.org).
• Succeeded in securing the return of N50 million from the British Metropolitan Police Proceeds of Corruption Unit following the successful confiscation hearing of a mistress of former governor of Plateau state, Chief Joshua Dariye (EFCC, 2007).
In cooperation and collaboration with other state global actors such as the Federal Bureau of Investigation (FBI), the UK’s Office of Fair Trading (OFT) and Metropolitan Police; international actors such as the World Bank, IMF, Egmont, Microsoft etc, the EFCC is not only significantly contributing in the fight against corruption but in salvaging the hitherto negative image of Nigeria in the international arena. Nigeria’s image has been synonymous with corruption. EFCC is working hard to change this image. For example, in May 2007, Nigeria became a member of the internationally acclaimed Egmont Group of Financial Intelligence Units
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(FIUs). The Egmont Group, which has over 106 members, with headquarters in Toronto,
Canada, is an international network of FIUs that was formed in 1995 to promote the exchange of financial intelligence information and enhance global cooperation in the fight against money laundering and terrorist financing (Egburuonu, 2011).
4.4 IMMUNITY AND PROSECUTION OF PUBLIC OFFICIALS IN NIGERIA
The purpose of the immunity contained in the Constitution is to bar any form of inhibition of the office holder in the performance of his duties during his tenure in office.28 The immunity clause is a temporary privilege which ensures that no one is allowed to stop the wheel of governance by holding the President or Governor to ransom under any guise. It is a temporary protection intended to shield the occupant of the office from distractions while executing the duties inherent in that office. Under the Nigerian Constitution, immunity exists for members of the three arms of government. This would be treated briefly.
(i) Legislative Immunity
The 1999 Constitution does not make specific provisions on the immunity of members of legislative houses in Nigeria. Rather, it empowers the National Assembly to make laws on the powers of the National Assembly, and the privileges and immunities of its members. The current law on immunity for the members of the National Assembly is the Legislative Houses (Powers &
Privileges) Act. Section 3 of the Act titled “immunity from proceedings” provides:
No civil or criminal proceedings may be instituted against any member of a Legislative House – (a) in respect of words spoken before that House or a Committee thereof; or (b) in respect of words written in a report to that House or to any Committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him therein.
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Furthermore, by section 29 of the Act, where a member of the National Assembly is arrested or detained in custody upon the warrant or order of a court; or a member is sentenced by a court to a term of imprisonment, the court shall, as soon as possible, inform the President of the
Senate or the Speaker of the House of Representatives, as the case may be. By virtue of section
30, neither the President nor Speaker of a legislative house or any officer of a legislative house shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by, or under the Act or the standing orders of the legislative house, or by the
Constitution. Section 31 provides further that civil processes are not to be served in chamber or in the precincts of a legislative house. The legislative immunity contained in this Act is obviously qualified; only legislative communications are covered by the immunity and only the premises of the National Assembly are protected from service of civil process by the Act. It thus follows that a member of a legislative house can face criminal prosecution. Similarly, criminal processes can also be served within the precincts of a legislative house. The utility of section 31 of the Act was queried by one writer while examining its provisions. According to him, in the case of Tony Momoh v. Senate, the Lagos High Court held that the court bailiff ought to have been allowed to serve the court civil process within the premises of the National Assembly given the provisions of section 236(1) of the 1979 constitution. He argued that section 31 of the Act was unconstitutional. The view taken here is that those sections of the Legislative Houses
(Powers and Privileges) Act are unconstitutional and they have been so pronounced upon by the courts, consequently they have been impliedly amended ‘judicially’.
(ii) Judicial Immunity
The earlier constitutions and the 1999 Constitution did not provide for the immunity of judges. The statutes establishing the various High courts of the States have provisions on judicial
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80 immunity. However, the statutes which established the Federal High Court, the Court of Appeal, and the Supreme Court do not contain similar provisions. For example the High Court Law of
Lagos State provides in section 88 that:
No judge shall be liable for any act done by him or ordered by him to be done on the discharge of his judicial duty, whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question.
It follows that the immunity of judges of courts of superior record which are contained in any specific statute would be governed by the common law. For the immunity of a judge to be raised, he/she must have been acting judicially.
(iii) Executive Immunity
By section 5 of the 1999 Constitution, the executive power is conferred on the President at the Federal level and on the Governor at the State level. The immunity for the President and his Vice, the “Effect of Acts of Parliament or other Acts Declared Unconstitutional” Governor and his deputy, are constitutionally provided for. Section 308 of the 1999 Constitution provides immunity for the executive office holders and their deputies, thus:
(1) Notwithstanding anything to the contrary in this constitution, but subject to subsection (2) of this section: (a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; (b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and (c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
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(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party. (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.
The immunity granted to the officers named in section 308 is personal and not official.
Thus, the immunity covers them in their private capacity and does not extend to the following situations:
(1) Civil proceedings against that person in his official capacity. (2) Civil or criminal proceedings where he/she is only a nominal party.
It is also an absolute one; one that covers all criminal and civil claims against the beneficiary during his/her tenure in office. The incidence of this immunity is clear – no civil or criminal action can be instituted or maintained against the office holder mentioned in section 308 in his/her private capacity during his/her tenure in office; neither can they be compelled to testify in any judicial proceedings as witnesses in their private capacity. Executive immunity has generated controversy in recent times because of its scope.
4.5 Executive Immunity under the Nigerian Constitution
One of the earliest cases on the sustainability of suits against the beneficiaries named in the Constitution was Colonel Olu Rotimi and Others v. MacGregor. In that case, a civil action was commenced against the 1st appellant in his personal capacity and was continued against him after he became the Military Governor of the former Western State. In compliance with section
161 of the 1963 Constitution, the Supreme Court ordered the suit to be discontinued. The
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82 immunity provided for under the Nigerian Constitution thus means that an action cannot be instituted against any of the office holders mentioned in section 308 while in office, and if already instituted, on assumption of office, the action must be discontinued. A similar situation arose in the case of Tinubu v. IMB Securties PLC. The Governor was the appellant in this case at the Court of Appeal when the provision of section 308 was invoked. The court adjourned the appellant’s appeal before it sine die until the appellant vacates office as Governor of Lagos State.
While upholding the decision of the Court of Appeal to discontinue the proceedings by virtue of section 308, the Supreme Court held that the proper order was to strike out the case. The ratio in this case is that the immunity conferred by section 308 is for public policy and so cannot be waived either by the court or the office holder concerned.
In conclusion, the immunity conferred by section 308 of the 1999 Constitution protects the private person of executive office holders absolutely, though for a period of time, which is, during the tenure of office of the beneficiary. Also, the immunity is restricted to legal proceedings in a court of law or a special tribunal established by law with the exception of an
Election Petition Tribunal and the Code of Conduct Tribunal.
Finally, the immunity does not protect them from investigation by law enforcement agencies such as the Police, the Independent Corrupt Practices Commission or the Economic and
Financial Crimes Commission. The utility of the executive immunity contained in the Nigerian constitution was called to question during the tenure of Nuhu Ribadu as Chairman of the
Economic and Financial Crimes Commission (EFCC) when he was reported to have said he had concluded investigations on about 24 serving governors who would be arrested on the expiration of their term in office on the 28th of May, 2007, on alleged economic and financial crimes. This
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83 opened a torrent of attacks on the immunity clause in the 1999 Constitution with some arguments to the contrary however. A sample of these opinions would be addressed under this subhead.
Perhaps, in line with his policy of zero tolerance for corruption, President Umaru Musa
Yar’Adua declared his support for the removal of the immunity clause from the Constitution at the Partnership Against Corruption Initiative which held in Davos, Switzerland in January 2008.
Later in the year, President Yar’Adua reiterated his call that the immunity clause be expunged from the Constitution by the National Assembly at the launch of the Anti-Corruption Revolution
(ANCOR) campaign of the EFCC in December 2008. The President was reported as saying that the immunity clause which shields the President, Vice-President, Governors, and Deputy
Governors from being prosecuted for any act of corruption while in office has become a cover for nonperformance, ineptitude and corrupt practices. Applauding President Yar’Adua’s stance on the immunity clause, another writer, a Nigerian resident in the United States of America, canvassed for the removal of the ‘two fertilizers of corruption’ in Nigeria – the immunity clause and security vote for elected office holders. Lending his support along this line was a presidential candidate in the 2007 general elections, Professor Pat Utomi. A Law Attorney of Nigerian descent in New York City, while supporting these views was more in favour of a qualified immunity for the executive. According to him, the office holder should loose his/her immunity whenever there is allegation of criminal conduct against him/her.
Corruption, especially corruption by public office holders is one vice that is engaging the attention of Nigerians at the moment. The immunity clause does not, in our view provide a cover for non-performance, ineptitude and corrupt practices as President Yar’Adua said, neither does immunity act as fertilizer of corruption. Rather, non-performance and ineptitude are indicative of a corrupt system. Political corruption as evident in fraudulent electoral processes, secrecy in the
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84 conduct of government affairs and non-adherence to law invariably give birth to economic and financial corruption. All of these are due to disrespect for law and regularity. In other words, whenever law fails to transform into social order then there is bound to be lack of societal order indexed majorly by corruption. Non-performance (or poor performance) and ineptitude, which the President mentioned, are not shielded by immunity; they are not crimes, per se, in any criminal legislation.
They are ‘political offences’ which the electorates are to prosecute against the current office holder and ruling party or the party alone if the current office holder is not seeking re- election, and give verdict on at the next election. With political corruption characterized by fraudulent electoral system, weak party system, parochial non-nationalist interest in politics, etc, this form of sanction is unavailable to the electorate against the office holders with or without immunity from prosecution. On the perceived difficulty in prosecuting alleged corrupt beneficiaries of executive immunity, the view held here is that it is the weakness of state prosecutorial agencies that makes the prosecution difficult. After all, the immunity is not forever, why then are they not tried on those alleged crimes after they left office. The alleged corrupt governors that Ribadu mentioned, who are they? Where are they at the moment? The immunity clause is perceived by some to be a shield for corrupt practices because of the entrenched vices of self-aggrandizement in the Nigerian polity.
The argument in support of a total removal of executive immunity cannot be supported either, going by the events of the recent past, particularly the periods between 2003 and 2007. If immunity is completely removed, given Nigeria’s underdeveloped political system characterized by weak democratic institutions, excessive control wielded by the President over prosecution
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85 machinery like the police, the EFCC and allied agencies, and the unbalanced nature of Nigeria’s federalism, the governors and even the Vice President could suffer intense harassment from the
President because of political differences he may have with them.
This assertion is given credence by the case of A.G. Anambra v. A.G. Federation & 35
Ors. The facts of this case were that on the basis of an Enugu High Court order directing the
Inspector General of Police (IGP) to remove the Governor of Anambra State from office (an order that was suspended by the Enugu Division of the Court of Appeal), the IGP, acting on the directive of the President withdrew all police protection and security apparatus of State power from the Governor of Anambra State and refused to restore same despite the order of the Court of Appeal. Furthermore, the federal government through the President continued to prevent the
Anambra State Commissioner of Police from taking lawful directives from the Governor of the
State for the maintenance of public safety, public order and the provision of police protection, contrary to section 215(4) of the Constitution. It took the intervention of the Supreme Court in exercise of its original jurisdiction for the federal government to respect the right of the government and people of Anambra State to police protection. The random unconstitutional impeachments of some state governors under the pretext of anti-corruption crusade whereas the underlying reasons were to score political points further gives credence to the assertion above.
It was argued by one other writer that a qualified immunity which covers the official acts of the office holders only should be allowed in the Constitution. According to him:
“[I]t is obvious that section 308 is a provision, too broad for the purpose for which it is meant. It is in effect an excessive protection of the President and Governors as what is sought to be achieved through the section can better be achieved if the immunity is limited to the official transactions of the persons named in the section to the exclusion of every other transaction, they may get involved in. Such qualified immunity offers a double-barrel blessing. The first is that it would reduce the arbitrariness of such
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officials, and second, it would roll away the stone from the iniquitous tomb to which section 308 has confined people’s fundamental right to sue when their rights have been trampled upon by any of the persons named in the section….it is time for the legislature to amend the immunity provision of the constitution to make it applicable only when the official acts of the persons named in the section come into question”.
Absolute immunity as it is at the moment is not good for the development of democracy and good governance in the country, the argument that the immunity is only for the period of office or tenure, notwithstanding. The immunity that should be in a statute as we have proposed should be a qualified one in the realm of criminal prosecution. Governance is based, among other things, on trust on the leader based on his perceived credibility (moral or political). Executive immunity, and indeed immunity for members of any of the organs of government, should stop at the point where the credibility to continue in office is in issue. There are crimes that carry with them moral and or political incredibility.
Economic/financial crimes, corrupt practices, forgery and/ or perjury (especially one committed in order to attain the office), homicide and rape are serious offences from the point of view of our penal legislations. They are also offences that Nigerians loathe. It is the view here that just as any one aspiring to public office in Nigeria should not have been tried and convicted of any of these crimes, so also any one alleged to have committed these crimes should not be allowed to remain in office under the guise of immunity. Furthermore, any Governor, Deputy
Governor, or even the President or Vice President who is alleged to have committed any of these crimes would suffer from serious moral/political credibility crisis. At such times, the business of governance is hardly concentrated on. Governance involves the government and the governed and where the governed losses faith in the government based on allegations of the commission of
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87 heinous crimes, so much public funds may then have to be spent on image laundering with governance gradually loosing its essence.
In order to curb frivolous allegations, these offences must be those alleged to have been committed during their tenure in office or committed in order to attain the office. Financial crimes, homicide, forgery, perjury, and rape committed before office and which were not in furtherance of the attainment of the political office should be prosecuted at the end of the tenure of the executive office holder.
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CHAPTER FIVE
ARRESTS AND PROSECUTION OF CORRUPT PUBLIC OFFICIALS IN NIGERIA BY
EFCC
When you fight corruption, it fights back. – Ribadu (cited in Human Rights Watch, 2011)
Following the end of military rule in 1999, and in recognition of the widespread nature of corruption, the Nigerian government established the Independent Corrupt Practices and Other
Related Offences Commission (ICPC) in September 2000 to combat public sector graft such as bribery and abuse of office by public officials.9 The ICPC was intended to build on the Code of
Conduct Bureau (CCB), and its sister entity the Code of Conduct Tribunal, which was established in 1990 to enforce a code of conduct for public officials.
Neither institution proved effective in curbing rampant public sector corruption. Amid pressure from the international community to address what then-president Olusegun Obasanjo referred to as the “corruption quagmire” in Nigeria, the Nigerian government established the
Economic and Financial Crimes Commission (EFCC) in December 2002 with the National
Assembly’s passage of the Economic and Financial Crimes Commission (Establishment) Act.
The agency, which was granted broad powers to investigate and prosecute economic and financial crimes, was intended primarily as a tool to fight crimes such as money laundering and advance fee fraud. Since its inception, the EFCC has grown into Nigeria’s largest anti-corruption agency, with an annual budget of US$60 million in 2010 and more than 1,700 personnel.
The EFCC’s initial caseload reflected its intended focus. The institution proved especially effective in prosecuting cases of advance fee fraud (commonly known in Nigeria as “4-1-9” scams after the relevant provision in the Nigerian Criminal Code)—a crime that includes the pervasive email scams that are widely associated with Nigeria.
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In November 2005 the EFCC made headlines when it successfully prosecuted the so- called “Brazil” case, involving an advance fee fraud scheme whose Nigerian authors duped a corrupt official at a major Brazilian bank into stealing about $242 million and giving most of it to them.
The EFCC soon acquired a reputation for dynamism and efficiency that the largely toothless CCB and the vast but largely ineffective ICPC could not claim. While the EFCC’s mandate was not specifically crafted to target public sector corruption, it was written broadly enough to encompass it. As the chairman of the Senate committee that oversees both the EFCC and the ICPC put it, the EFCC began pursuing cases of government corruption “principally because the ICPC was not performing.”
5.1 ARRESTS AND PROSECUTION OF PUBLIC OFFICIALS BY THE EFCC
The EFCC began charging former governors immediately after their terms expired in
May 2007, with some fleeing before they could be charged, and one, Peter Odili (Rivers), pre- empting the EFCC’s charges by acquiring an injunction before leaving office (BBC News
30.5.2007; Business Day 5.3.2008; This Day 30.5.2007). In mid July former governors Joshua
Dariye (Plateau), Saminu Turaki ( Jigawa), Orji Uzor Kalu (Abia), Chimaroke Nnamani (Enugu) and Jolly Nyame (Taraba) were arrested by the EFCC and arraigned on charges of corruption and money laundering (BBC News 13.7.2007). Later that month, Diepreye Alamaleyeseigha
(Bayelsa), who had been arrested and charged in December 2005 after being impeached, became the first former governor to be convicted. He was ordered to hand over illegally acquired property, stocks and cash, given a two-year prison sentence and released on time served (BBC
News 28.7.2007). Other former governors were called in for questioning, and the EFCC made it clear that further arrests would be forthcoming. However, in August Attorney General Michael
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Aondoakaa announced that the independent prosecutorial powers granted to the EFCC and ICPC in their establishment acts were unconstitutional, and that all future prosecutions would need to be vetted by his office. This set off the EFCC’s (and ICPC’s) own struggle for survival and relevance under the new administration.
Aondoakaa’s position was legally sound but politically suspect. Concern had been expressed by non-interested parties over the legal position of the EFCC and the extent to which it operated outside the bounds of the rule of law, even as other observers had begun to point to the prosecutorial powers of the EFCC – and thus its relative autonomy of political interests – as a key factor in its greater success (Business Daily, 2007). It is possible that the new administration genuinely seeks simply to bring the anti-corruption agencies under the supervision of the
Attorney General’s office, and does not intend the Attorney General to be a block to prosecution of the governors or anyone else. However, Aondoakaa appeared to be creating obstacles to the ongoing EFCC effort to prosecute Dariye and Kalu, as well as blocking prosecutions by the UK
Metropolitan Police of Dariye and former Delta State governor James Ibori, which amplified local and international concerns about the efficacy of the EFCC after Obasanjo. Much depended on the ability of the agency to hold its ground at this critical juncture.
Ribadu’s EFCC did not back down. In mid December 2007 it arrested former Ekiti State governor Ayo Fayose, and former Delta State governor James Ibori, seen as the most powerful and politically connected of the governors and a major backer of President Yar’Adua (This Day,
2007).
Ibori’s arrest seemed to resolve the debate over the EFCC, demonstrating its autonomy from political interests, its commitment to its institutional mandate, and its capacity to touch the untouchable. Ribadu himself noted that it sent ‘a clear message to everybody that we are damn
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This is a real sign that the government is getting serious about fighting corruption. But then the other shoe dropped. A week after these arrests, the Attorney General announced that the government intended to merge the EFCC, ICPC and the Code of Conduct Bureau (CCB) because of the overlapping functions of the agencies. Again the move was procedurally sound – the EFCC and ICPC perform largely the same function – but politically suspect. Those who had been suspicious of the Attorney General’s effort to assert his authority over the agencies saw this as a move to get rid of Ribadu, leaving the much less effective and well-known head of the ICPC or CCB in charge of a post-merger anti-corruption organization (Daily Trust, 2007:22).
These suspicions were confirmed the following week, when a quicker solution appeared to have been found: Nigeria’s Police Chief Mike Okiro announced that Ribadu had been ordered to attend a one year policy and strategic studies course in central Nigeria (BBC News, 2007). This, many concluded, was the end of the EFCC. Instrumentalised by Obasanjo, it would now be marginalised by Yar’Adua. An EFCC official told Human Rights Watch (2008) that the move was intended to ‘dilute the independence of the EFCC’ and ‘halt the investigation and prosecution of former governors’. Public outcries were heard across Nigeria and around the world. When the dust settled, Nigerian commentators concluded that these events demonstrated once again that their country could not progress on any front as long as it was led by strong individuals rather than strong institutions. Neopatrimonialism appeared to have won yet again.
While understandable, the conclusion is premature. In the tale of the tortoise and the leopard, the leopard catches the tortoise and tells him to prepare himself to die. The tortoise thrashes around, scratching with his hands and feet, throwing sand in all directions and then waits quietly for death. Puzzled, the leopard asks why he did it. The tortoise replies: ‘Even after I am dead I
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(Achebe 1988: 128). Ribadu did not fundamentally change Nigeria. But the scratches he made in the sand may still mark the beginning of incremental reforms that eventually will lead to more significant and lasting change.
Ribadu enjoyed a level of political protection from his president that Ringera and
Githongo did not, and he understood the limits of his purview. He stated publicly that for him the issue was always whether targets of investigation are guilty or not guilty of corruption. He did not prosecute innocents. However, since virtually all of the governors were guilty, prosecuting those stripped of their immunity by the political machinations of Obasanjo and his allies politicized his principled approach, even if indirectly.
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TABLE 1: The Cases of Public Officials
Ayo Fayose Former Fed High Court Lagos Arraigned on 51 state counts Plea already N1.2 billion Granted bail Governor of Ekiti State Case taken defence lawyer often seeks long by court since now transferred to Ekiti adjournments to prolong trial. 2007 for that after he accused opposed his trial in Lagos.
Adenike Grange (Former FCT. High Court Arraigned on 56 state counts. Plea N300million Granted bail Minister of health) already taken defence lawyer often seeks by court since Maitama long adjournments to prolong trial. Matter 2008 adjourned to Oct
Joshua Darive (Former FCT High Court Gude Arraigned on 23 state counts. Plea N700million Granted bail Governor plateau State) already taken but defence lawyer by court since challenged court jurisdiction. But Appeal 2007 court threw out application and case now fixed for continuation of trial on Oct. 27. 2010. Saminu Turaki (Former FCT High Court Arraigned on 32 state counts. Plea N36 billion Granted bail Governor Jigawa State) already taken but defence lawyer by court since . Maitama challenged court jurisdiction. Case stalled 2007 at HC while seeking stay of trial at appeal court. It is part of usual attempt to frustrate and prolong trial Source: Onyemaizu, C. (2010:31-35), “A list of fury”. The source, November 8. See appendix for continuation
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The Case of Former Rivers State Governor Peter Odili
In March 2007 then-Rivers State governor, Peter Odili, obtained a remarkable Federal
High Court decision forbidding the EFCC from investigating the finances of his government.
After Odili left office, he managed to secure a “perpetual injunction”—widely condemned as a mockery of the judicial process—that permanently restrained the EFCC from “arresting, detaining and arraigning Odili on the basis of his tenure as governor” (Egburuonu, 2011:20). The decision was widely denounced as without any legal basis and its author, Justice Ibrahim Buba, became a widely reviled figure in the Nigerian press.
Similarly, in December 2008, EFCC prosecutors reached a plea bargain agreement in the trial of former Edo State governor Lucky Igbinedion, who was charged with various counts of money laundering involving about $25million in state government money. According to attorney
Rotimi Jacobs, who prosecuted the case, the agreement stipulated that Igbinedion would plead guilty to several counts, and the judge would sentence him to at least six months in prison and order the former governor to forfeit three illicitly-acquired Abuja properties (Human Rights
Watch, 2011).
According to Obuah (2010) on the day Igbinedion’s sentence was handed down, prosecutors received a rude shock. Deviating from the terms of the agreement, the Federal High
Court judge, Abdullahi Kafarati, sentenced Igbinedion to a paltry 3.5 million niara (about
$25,000) fine instead of prison time and ordered his assets seized. Igbinedion walked free the same day of his sentencing after reportedly paying the fine on the spot, in cash. The fact that
Igbinedion had the right amount of cash on hand gave rise to suspicions that he knew what his sentence was going to be before it was handed down. Jacob (cited in Human Rights Watch,
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2011) stated that only God knows what happened behind the scenes. “[But] he had brought the cash to court, which means he had pre-knowledge (Obuah, 2010)
According to Eme and Oko (2011), still more jarring was a federal judge’s December
2009 dismissal of all 170 criminal counts against powerful former Delta State governor James
Ibori—without allowing the prosecution to present any of its evidence at trial. Human Rights
Watch (2011) notes that the case was heard in Asaba—capital of Ibori’s home state—after the former governor’s lawyers won a court order that overturned established precedent by moving the trial there from Kaduna.
According to Eme and Oko (2011), in dismissing the charges against Ibori, Federal High
Court judge Marcel Awokulehin held that despite submitting over 1,000 pages of documentation, the prosecution had failed to establish a prima facie case of even one instance of criminal wrongdoing by Ibori or his six co-defendants. Considering the allegations at issue, the decision was baffling. One count of the indictment alleged that Ibori had given then-EFCC chairman,
Ribadu, a $15 million bribe in an attempt to get the case against him dropped. Ribadu had handed $15 million in cash over to the Central Bank of Nigeria for safekeeping as evidence, alleging that this was the money Ibori had bribed him with.
Ribadu claimed that Ibori arranged for him to collect the money at the home of powerful
People’s Democratic Party (PDP) politician Andy Uba. The prosecution presented the court with witness statements by Ribadu and two other EFCC officials alleging that they went to Uba’s house and collected the money as instructed. But Justice Awokulehin held that the prosecution’s case on this count would inevitably consist entirely of “worthless hearsay evidence” because Uba had not provided them with a written statement confirming that he had tried to bribe Ribadu at
Ibori’s request. In February 2011 Central Bank officials confirmed that Ribadu had given the
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Central Bank the $15 million and that it remained in their possession. The EFCC has since appealed Justice Awokulehin’s dismissal of the case (Obuah, 2010).
The EFCC has filed more than 25 complaints against judges for various delays in the corruption cases, granting “frivolous injunctions to halt trials and investigations,” and
“partisanship”— including to the National Judicial Council, an independent constitutional body responsible for oversight and discipline of members of the judiciary—but, according to the
EFCC, little has been done other than, in a few cases reassigning the case to a new judge
(Egburuonu, 2011).
5.2 PROSECUTION AND CONVICTION OF CORRUPT OFFICIALS
In terms of pure numbers, the sum total of the EFCC’s convictions of public officials’ figures is underwhelming: a mere four convictions in eight years—between 2003 and July 2011.
Only one of the four convictions was obtained at trial, with the others obtained through plea bargains that involved dropping some of the most serious charges against the accused.
Ribadu was no more successful in convicting nationally prominent political figures than
Waziri has been, and both of the EFCC’s convictions under Ribadu were through plea bargain agreements. The one caveat is that seven of the cases against former state governors filed under
Ribadu, and a number of the cases brought by Waizri, have been stalled in the courts by procedural delays and may yet result in important convictions.
Tafa Balogun was the EFCC’s first conviction of a nationally prominent political figure.
Charged to court in April 2005, just months after being forced to retire as Nigeria’s inspector general of police, Balogun ultimately pleaded guilty of failing to declare his assets, and his front companies were convicted of eight counts of money laundering. In November 2005 he was sentenced to six months in prison and the court ordered the seizure of his assets—reportedly
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Nonetheless, Balogun’s conviction was a profoundly important moment—the sight of such a prominent public official being hauled before a court in handcuffs to answer for corruption was something many Nigerians had thought impossible. Balogun has since reportedly retired to a luxury home in a high-end Lagos neighborhood.
Diepreye Alamieyeseigha served as governor of Nigeria’s oil-rich but deeply impoverished Bayelsa State from 1999 to 2005. In September 2005, he was arrested by British authorities in London. The London Metropolitan Police found about £1 million in cash at his home and charged him with money laundering.
Released on bail, Alamieyeseigha managed to flee the UK—the EFCC said he disguised as a woman—and reappeared in his home state, claiming he had been transported there by God.
As a sitting governor he enjoyed immunity from prosecution in Nigeria, but three months later he was impeached by his state legislature, and the EFCC charged him with embezzling about $55 million in public funds.98 In July 2007 the former governor pleaded guilty to failing to declare his assets, his front companies were convicted of money laundering, and the court ordered his assets seized. He was sentenced to two years in prison and released, for time served, the day after his sentencing.
Alamieyeseigha was quickly welcomed back into the ruling party fold. In May 2008 senior ruling party officials openly campaigned alongside Alamieyeseigha at a political rally in
Bayelsa State, just 10 months after his conviction.
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Former Edo State governor Lucky Igbinedion was charged by EFCC prosecutors in
January 2008 with siphoning of more than $25 million of public funds. He ultimately pleaded guilty in December 2008 to failing to declare his assets and his front company was convicted on
27 counts of money laundering. But the trial judge in the case, Abdullahi Kafarati, deviated from the terms of the plea agreement and handed down a very light sentence that included no jail time
(this aspect of the case is discussed in more detail below). Igbinedion paid the equivalent of a
$25,000 fine, agreed to forfeit some of his property, and walked free on the spot. The EFCC appealed the light sentence. In early 2011, the EFCC raided two of his palatial homes in Abuja and filed new criminal charges against the former governor. But in May 2011 the court dismissed the case, ruling that the new charges would amount to double jeopardy.
Olabode (“Bode”) George was a powerful figure within the ruling party under President
Obasanjo and was also chairman of the Nigerian Ports Authority (NPA) for a time. The EFCC in
August 2008 charged him with contract-related offenses dating back to his time at the NPA. In
October 2009 he was convicted and sentenced to two and a half years in prison after a surprisingly swift and efficient trial. This was the EFCC’s first and so far only conviction at trial of a major political figure—an important accomplishment. The positive example of his conviction was diminished, however, when he was treated to a rapturous welcome by key ruling party figures upon his release from prison in February 2011.
5.3 FACTORS UNDERMINING EFCC ANTI-CORRUPTION EFFORTS
The EFCC has made some promising steps in tackling deeply entrenched impunity for political corruption in Nigeria. At this writing, 30 nationally prominent political figures had been arraigned by the EFCC on corruption charges in the eight years since the agency was established.
But many of these cases have made little progress in the courts; there have been only four
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The performance of the EFCC is continually undermined both by institutional factors beyond its control and failures of the commission’s own making.
The sections below examines the most important impediments to the EFCC’s anti- corruption work, both systemic and self-inflicted.
Contextual Problems
If a law enforcement officer wants the work to be done, it will be done. But he may be denigrated, isolated, treated like a deviant. In Nigeria, crime does pay. Those doing this work are cut off from the system and are very unpopular among our colleagues and even in public opinion. —Senior law enforcement official108
According to Human Rights Watch (2010), the broadest obstacle any effort to tackle corruption in Nigeria faces is this: the country’s political system is built to reward corruption, not punish it. Too often, corruption is a prerequisite for success in Nigeria’s warped political process. Since 1999, elections have been stolen more often than won, and many politicians owe their illicitly-obtained offices to political sponsors who demand financial “returns” that can only be raised through corruption. Put simply, the day-to-day functioning of Nigeria’s political system constantly and directly undermines the EFCC’s work.
Egburuonu (2011) observed that PDP power-broker and former Nigerian Ports Authority chairman Olabode (“Bode”) George was sentenced to two and a half years in prison for contract- related offenses in 2009. His conviction after a swift and efficient trial was in many ways a landmark success for the EFCC. But his case is also an example of the willingness of Nigeria’s political establishment to embrace convicted criminals.
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According to Okesola (2011), Bode George was released from prison in February 2011.
Far from being treated as a pariah because of his misdeeds, he was whisked from his jail cell to a lavish welcome ceremony attended by prominent politicians including former President
Obasanjo, former Ogun State governor Gbenga Daniel, and former minister of defense Ademola
Adetokunbo. Ojukwu and Shopelu (2010) note that a former transportation minister even declared that George’s conviction had been unfair because all government officials engage in the same illegal practices he had been convicted of.
Nigerians watched politicians, including a minister that supposedly backs the EFCC’s anti-corruption agenda, welcome Bode George back into its arms as though he were a conquering hero rather than a convicted criminal. Meanwhile, the Lagos State judge who sent
Bode George to prison was removed from criminal matters and sent to work in family court.
Ojelu (2010) contend that while there is no proof that the move was connected to George’s conviction, many Nigerian activists and commentators found it hard to believe it was a coincidence.
Bode George’s story is not an anomaly. Ten months after former Bayelsa State governor
Diepreye Alamieyeseigha was convicted on corruption charges, Goodluck Jonathan, who was vice president at the time, and late president Yar’Adua openly campaigned alongside
Alamieyeseigha in May 2008 at a political rally in Bayelsa State (Oladele, 2010). These images of prominent government officials embracing convicted criminals only served to reinforce the broader trend of impunity that these convictions were meant to push back against.
In Nigeria’s political circles, whether the ruling party or opposition, politicians accused of corruption are welcomed and encouraged. For instance, Joshua Dariye and Abdullahi Adamu, former state governors of Plateau and Nasarawa, respectively, have both been arraigned by the
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EFCC on corruption charges but won elections to the Senate in the April 2011 elections.
(Ojukwu and Shopelu, 2010). Similarly, Human Rights Watch (2011) observed that two members of the House of Representative awaiting trial on corruption charges; Igwe Paulinus and
Ndudi Elumelu also won their elections to the House of Representatives. Adewuyi (2010) further posit that eight other former governors arraigned on corruption charges by the EFCC won party nominations to stand in the 2011 elections, either for governor or senator.
5.4 POLITICAL INTERFERENCE IN ANTI-CORRUPTION CASES
In a purely structural sense the EFCC is deeply vulnerable to the whims of the presidency. The commission’s chairman enjoys no security of tenure and can be removed by the president at will, without any form of consultation or approval from the National Assembly
(Section 3(2), EFCC Act, 2002). And the political pressures brought to bear on the EFCC have at times been enormous.
Human Rights Watch (2010) described how allegations of political selectivity tarnished the EFCC’s reputation when President Obasanjo was in power, and how Ribadu’s attempt to prosecute James Ibori led to his removal from the commission. After Ribadu’s ouster, Michael
Aondoakaa, the Attorney General of the Federation and reportedly Ibori’s close associate— seemed bent on undermining the very notion of a government-led war on corruption. According to the Human Rights Watch (2010), Michael Aondoakaa was attorney general in the Yar’Adua administration from July 2007 to February 2010. He was also reportedly a close associate of
James Ibori, the disgraced former governor of Delta State. During his time in office, Aondoakaa worked openly to undermine the independence of the EFCC and to derail domestic and international efforts to bring Ibori to justice. His strong-arm tactics earned him considerable notoriety.
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According to Ribadu (2009), Aondoakaa “interfered” in many of the EFCC prosecutions and “destroyed cases relating to corrupt State Governors [by] discontinuing hearings and trials.”
According to leaked US State Department cables published by WikiLeaks (2011), in 2008
Waziri told the US ambassador in Abuja that Aondoakaa had taken complete control over the
EFCC’s case against Ibori along with other “politically sensitive” cases—something the attorney general technically had no clear power to do without formally removing the cases from the
EFCC’s purview. Human Rights Watch (2011) argue that after the EFCC appealed a decision by the Court of Appeal transferring the case to Ibori’s home state—where Ibori still wielded enormous influence—the attorney general ordered the EFCC to withdraw the appeal. According to the United States State Department (cited in WikiLeaks, 2008), Waziri even implored the US ambassador to “put pressure on” the attorney general to allow her to move the Ibori case forward.
Adewuyi (2010) stated that Aondoakaa also alleged to have interfered in the money laundering case against Ibori and his associates in the United Kingdom. After an English court froze $35 million of Ibori’s assets in August 2007, Aondoakaa provided Ibori’s lawyer with a letter stating that Ibori had been “investigated” in Nigeria and no charges had been filed, despite the fact that the EFCC was still investigating the case and finalizing criminal charges. According to Anya and Mojeed (2007), the letter led the English court to lift the freeze on Ibori’s assets.124
According to Blake (2011), Aondoakaa also refused to negotiate a broad prisoner transfer agreement with British authorities unless the UK dropped efforts to prosecute Ibori for money laundering.
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According to the US embassy cables (cited by WikiLeaks, 2008), Aondoakaa was
“reputed to have done some of Yar’Adua’s dirty work, including attempts to disgrace former
[EFCC] Chairman Mallam Nuhu Ribadu.”
Human Rights Watch (2010) contends that political interference with the EFCC’s anti- corruption work was both inevitable and impossible to resist. As Keyamo (2011, cited in Human
Rights Watch (2011) put it, you don’t go picking [arresting] a high-profile serving government official without clearing from the president. Whoever is the EFCC chairman, he can’t go beyond the wish of the president. If he does, he would be removed the next day.… At the end of the day, anyone who is the chairman of the EFCC will have to read the body language of Mr. President to do what he wants.
On the other hand, despite the WikiLeaks revelations described above, Waziri (2011) asserted that since assuming office she was never under any sort of political pressure. According to her, “It has nothing to do with the presidency. I have not been prevailed on by the presidency to do anything on these cases.”
This kind of alleged political interference is a problem for other anti-corruption institutions as well. According to SaharaReporters (2011), in January 2011 Attorney General
Mohammed Adoke announced that he was taking over a rare high-profile ICPC corruption case against the Minister of State for Health, Suleiman Bello, without offering any explanation for the move.131 “We brought the case and the attorney general just told us to drop it,” one ICPC official told Human Rights Watch.
Section 174 (1) (b) and (c) provides that the attorney general has the power to take over or discontinue any prosecution from another federal agency if he believes it to be in the interest
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5.5 JUDICIAL INEFFICIENCY AND DELIBERATE DELAY IN PROSECUTION OF
CORRUPT OFFICIALS
Sections 19 (1) of the EFCC Act grants jurisdiction to both federal and state courts to try
EFCC cases. According to Section 19 (2 [b&c]3) of the EFCC Act, special judges or courts should be designated to hear corruption cases, and these proceedings should be “conducted with dispatch and given accelerated hearing.” Despite these provisions, many of the EFCC’s cases have made little progress in the courts. Of the EFCC’s 12 ongoing prosecutions of former state governors, eight have already been dragged out for more than three years. Some have gone more than four years without a single witness being called at trial.
According to Human Rights Watch (2011) with the exception of the Lagos State court system, no other state courts or judges in the federal system are designated to hear the corruption cases—and even in Lagos State the designated judges still have to hear cases involving other matters on their docket. Most courts in Nigeria are burdened with an antiquated physical and legal infrastructure that renders them extremely slow and inefficient. With the exception of the
Lagos State court system, rules of evidence and procedure have for the most part been left practically untouched since colonial rule, with absurd results—most state courts, for example, still lack a formal mechanism to admit electronic documents into evidence (Lagos Ministry of
Justice, 2009). Many judges take their own notes in longhand while, in the words of one judge cited in Human Rights Watch (2011), they “sweat and choke” in stiflingly hot courtrooms— hobbling the speed of any proceedings. The judiciary, including appellate courts, also strains under the burdens of an excessive caseload.
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These and other factors conspire to create extraordinary delays. As Ogundipe (cited in
Human Rights Watch, 2011) pointed, “Overworked judges want the opportunity to put off their work, so you get adjournments for the asking—and it always then takes about one to three months at least [to return to court] because the court’s calendar is always full.” But the most extreme delays come from the court system’s backlog of appeal cases. Many judges halt trials while interlocutory appeals are decided by higher courts, and skilled defense lawyers can exploit this to generate months or even years of delays in any given case.
When former Kogi State governor Abubakar Audu sought a court order restraining the
EFCC from prosecuting him in 2006, Federal High Court judge Mohammed Liman denied the application, noting that “I cannot be but horrified by the level of debauchery that was alleged to have been committed,” and he questioned the propriety of the former governor’s attempts to “use the instrumentality of the law to prevent his coming face to face with justice” (Human Rights
Watch, 2011:38). But since being charged, Audu’s case has been crippled by interminable delays. In early 2011, after nearly five years of appeals and other stoppages, the trial was finally due to commence— only to be postponed yet again when Audu was granted a delay for medical reasons. Babajide (2011) raised concern over how ill the accused truly was; having declared his candidacy to regain the governorship of Kogi State, Audu was vigorously campaigning in spite of his infirmity.
As Tarfa, cited in Human Rights Watch (2011:38), put it, “A defense counsel has to take advantage of anything that might benefit his client.” If faced with an unfavorable case, he said, I will advise my client not to rush to judgment.… The laws are skewed in favor of an accused person … once he’s granted bail he can drag out his trial forever. This is compounded by the fact that judges are bombarded with work, have no modern facilities, and no good assistance.
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Agbakoba cited in Human Rights Watch (2011) have observed that the former governors have tremendous leverage over the system. I don’t know if they had judges in their pockets, but I do know the system was on their side.
Courts in Nigeria have stood up to roll back abuses of government power more frequently and effectively than any other institution. For example, courts stripped 12 governors of their seats after Nigeria’s fraudulent 2007 elections. But Nigeria’s judiciary system is a mixed bag, and some courts have been tainted by allegations of corruption or succumbing to political influence. For example, the reputation of Nigeria’s court system took a beating in February 2011 when Ayo Salami, the president of the federal Court of Appeal, publicly accused Supreme Court chief justice, Aloysius Katsina-Alu, of trying to pressure him to decide a key electoral petition in favor of PDP (Soniyi, 2011). It did not help matters that Mary Odili, wife of former Rivers State governor Peter Odili, was elevated to a Supreme Court seat the same month. Not long after, US
State Department cables cited by WikiLeaks (2009) revealed that Dimeji Bankole, at that time
Speaker of House of Representatives, claimed to US diplomats he had proof Supreme Court justices had taken bribes to validate Umaru Yar’Adua’s election as president in 2007.
Furthermore, in the run-up to Nigeria’s 2011 polls, lower court judges handed out an unprecedented number of election-related injunctions to various candidates for office. According to Human Rights Watch (2011), the blizzard of injunctions was so crowded that many suspected some judges were essentially offering them up for sale.
Human Rights Watch (2011) further posits that the temptation to give in to graft is especially high in cases involving prominent political figures on trial for corruption. According to Human Rights Watch (2011), there is no concrete evidence of judicial corruption in any of the
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EFCC cases, but there are at least three high-profile EFCC cases where the appearance of judicial impropriety has been striking.
5.6 THE EFCC’S OWN SHORTCOMINGS
While the EFCC certainly faces an array of external obstacles to its work, the agency has also managed to damage some of its own prosecutions through error and incompetence. Under
Ribadu, the EFCC was sometimes criticized for its penchant for high-profile arrests and public
“invitations” of prominent suspects to come in for questioning before criminal investigations were complete. While these tactics earned headlines and may have struck fear into the hearts of some corrupt public officials, Aiyedele (2008) noted that they also undermined the underlying investigations. As Eme and Oko (2011:12) put it, “The day you make an announcement to the media [should be] the day you have filed a case—otherwise you are just saying, ‘hide your tracks, we are coming.’
The EFCC’s failure to prosecute former Rivers State governor Peter Odili (in office from
1999 to 2007) stems from severe incompetence for which officials have failed to offer any plausible explanation. Odili was a close ally of former president Olusegun Obasanjo. According to Adebayo (2011), his tenure in office was marred by widespread evidence of corruption, mismanagement, organized political violence, and electoral fraud.
By 2006, former EFCC chairman Ribadu observed that the EFCC had amassed a vast criminal case against Odili. And in 2007 Ribadu reportedly helped derail Odili’s vice- presidential ambitions by presenting some of that evidence to Obasanjo in a dossier that detailed evidence of fraud and corruption against Odili. However, the EFCC has never charged him.
In March 2007, Odili obtained a stunning court judgment from Federal High Court judge
Ibrahim Buba. Obuah (2010) observed that not only did Justice Buba order the EFCC to
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EFCC had no power to “in any manner howsoever investigate the account or financial affairs of a State government.” According to Greenberg et al (2009), the ruling not only purported to restrain the EFCC from investigating Odili, but if taken to its logical conclusion, would restrain the agency from investigating alleged crimes on the part of any current or former state government official. It called into question the very existence of the agency’s anti-corruption campaign. Buba’s ruling in the Odili case has been widely disparaged by legal experts and civil society activists as a brazen and indefensible departure from the letter of the law.
Rightly or wrongly, former EFCC chairman Farida Waziri was widely considered ineffective. US State Department cited by WikiLeaks (2009) quote former House of
Representatives speaker, Dimeji Bankole, as telling US diplomats that he had no confidence in
Waziri’s leadership or integrity and that the EFCC was not worth “one penny” since she had taken over. Similarly, Rabe Nasir, until 2011 head of the House of Representatives committee responsible for overseeing the EFCC— and himself a former EFCC during the Ribadu regime advised the president to “do away with that woman. If he doesn’t, forget about fighting corruption in this country” (Human Rights Watch, 2011:44)
5.7 UNRELIABLE PARTNERS: THE ICPC AND CCB
According to Greenberg et al (2009), the Independent Corrupt Practices and Other
Related Offences Commission (ICPC) and the Code of Conduct Bureau (CCB)—the two other federal institutions specifically tasked with fighting corruption—have been widely criticized as ineffectual. Their shortcomings are important—both institutions have powers and resources that in some ways outstrip those of the EFCC and could be very potent weapons in the fight against
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According to Obuah (2010), the ICPC, not the EFCC was originally meant to be
Nigeria’s primary institution to address corruption in the public sector. But in a public opinion poll of Nigerians in 2008, only 16 percent of respondents named the ICPC as the anti-corruption agency that first came to their mind, compared to 81 percent of respondents who named the
EFCC (Human Rights Watch, 2011). Established in 2000 by the passage of the Corrupt Practices and other Related Offences Act in the National Assembly, the ICPC has broader powers than the
EFCC to fight public sector corruption and is more insulated from the dictates of the presidency.
For example, the ICPC has broader powers than the EFCC to seize the assets of allegedly corrupt public officials and compel production of financial information. According to Section 44(2) of the ICPC Act, the ICPC can even compel public officials to explain how they acquired property that its investigators deem “excessive” in relation to their salaries, a power that has no parallel in the EFCC Act. In addition, the ICPC’s chairman is better protected from presidential pressure than his counterpart at the EFCC because he enjoys security of tenure.
Human Rights Watch (2011) points that The ICPC, with an annual budget of approximately $12.3 million in 2010 and some 500 personnel in 11 offices across Nigeria, has had some successes, but the institution is widely regarded as ineffective in spite of its broad powers and has shown little appetite for high-level corruption cases. According to Adeleke
(2012), since 2000, the agency has arraigned 520 people on various corruption charges and secured 25 convictions. According to him, only 10 of the defendants were nationally prominent political figures. Out of those cases, seven defendants—charged in 2005—died or had their case dismissed;209 two of the trials, at this writing, had not yet begun; and only one case had resulted
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Bello Lafiaji was sentenced to four years in prison on seven counts of financial crimes, including taking €164,300 to release a suspect arrested on drug charges.
Senator Sola Akinyede, chairman of the Senate committee that oversees both the ICPC and EFCC, argued that the institution makes no use of its broad asset seizure powers and wastes enormous resources on ineffectual “public education” efforts on the evils of corruption. Ayoade
(2010) points that in 2010 the ICPC published a front-page interview with controversial Ogun
State governor Gbenga Daniel in its glossy promotional magazine which uncritically examined the governor’s claims to fight corruption by “monitoring performance” of government agencies and remaining in close contact with his constituents. However, in 2011 the EFCC announced that it was probing allegations of corruption against the same governor (Odewingie and Patrick,
2011).
Some critics, including Attorney General Mohammed Adoke, have called for the merger of the ICPC with the EFCC to strengthen anti-corruption efforts.219 Human Rights Watch does not take a position on this issue, but notes that there is not necessarily any reason to believe that simply merging or restructuring these institutions would address the root causes of their disappointing records.
The Code of Conduct Bureau and Tribunal
The Code of Conduct Bureau (CCB) and the Code of Conduct Tribunal—constitutionally mandated bodies, first established in 1990—have a far more narrow and specific mandate than the EFCC and ICPC: to enforce a code of conduct for public officials. The primary role of the
CCB is to collect asset declarations from every one of Nigeria’s approximately 2.1 million public officials and verify their accuracy.
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Analyzing so many declarations in a meaningful way would be a logistical impossibility, and the bureau doesn’t try to do so. CCB chairman Sam Saba says that the bureau focuses its attention on the asset declarations of high-level officials and officials who are the subject of public petitions alleging financial misconduct. That focus is a sensible one, but Saba acknowledges that even there his bureau makes little progress. “On the investigation side we have received a lot of petitions [alleging wrongdoing],” he complained, “but our staff do not have the capacity to properly investigate and prosecute these cases.” The CCB and the Code of
Conduct Tribunal have a combined annual budget of some $8.3 million, with more than 80 CCB investigators stationed in the Abuja office and state capitals across Nigeria.
The government’s failure to empower the CCB to realize its mandate is another glaring problem. Nigeria’s constitution provides that the bureau will make all asset declarations available for public inspection, but Nigeria’s legislature has failed to enact the legislation necessary to operationalize that provision.
There are other very important powers at the CCB’s disposal that it appears to make inadequate use of. The Code of Conduct Tribunal can remove public officials from office and bar them from holding office for a period of up to 10 years for violating any provision of the code of conduct for public officials set down in Nigeria’s constitution—several provisions of which deal with financial probity and transparency. It forbids, for example, high-level officials including state governors from maintaining any bank account outside of Nigeria. Human Rights Watch
(2011) contends that the tribunal never pursues such sanctions because it did not want to make public officials suffer.
The CCB has displayed similar indolence in finding innovative ways to cooperate with other arms of government. “The Central Bank of Nigeria has committed to us that anyone’s
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112 accounts we want to go into, they will give us access. In the end, the CCB has had little impact in keeping corrupt politicians out of public office. In the April 2011 elections, 15 politicians who had been arraigned by the EFCC on corruption charges ran for office, seemingly unencumbered by the CCB.229 In fact, the CCB has only pursued one case against a nationally prominent political figure in the past two years: former EFCC chairman Nuhu Ribadu was hauled before the tribunal in 2009 for allegedly failing to declare his assets, a charge he adamantly denied. The case was eventually withdrawn by the attorney general in 2010 without any public explanation.
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CHAPTER SIX
SUMMARY, CONCLUSION AND RECOMMENDATIONS
6.1 SUMMARY
This study has appraised the performance of the Economic and Financial Crimes
Commission (EFCC) in reducing corruption in Nigeria. For proper understanding, the study was divided into six chapters. The first chapter examined the introductory issues of the research which included the background of the study, statement of the problem, objectives of the study, and significance of the study. The broad objective of the study was to examine the performance of the economic and financial crimes commission (EFCC) in reducing corruption in Nigeria. The specific objectives, however, were: i. To ascertain whether the immunity of public office holders hindered the effective
enforcement of economic and financial crime laws by the Economic and Financial Crimes
Commission in Nigeria. ii. To determine whether the arrest and prosecution of corrupt government officials by the
Economic and Financial Crimes Commission (EFCC) reduced the incidence of corruption
among government official in Nigeria.
In pursuance of these objectives, the research proceeded to conduct literature review in chapter two. The aim of the review was to explore the views of researchers and writers on the research variables, which include corruption and corrupt practices in Nigeria, immunity of public officeholders in Nigeria as well as the arrests and prosecution of corrupt public officials. The review demonstrated that authors such as Transparency International (2002, 2007), World Bank
(1997), UNDP (2004), Akindele (1995) Dike (2011), Keeper (2012), Lipset and Linz (2000), Sen
(1999), Ofoeze (2004), Asogwa (2008), Shively (2007), Ezekwesili (2004), Ribadu (2006), Idris
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(2011) and Chinhamo and Shumba (2007) the phenomenon of corruption and its effect in
Nigeria. They noted that corruption is an inappropriate or illegal behavior of public sector official (politician or public officeholder) by misusing the entrusted power for private gain of the person or related people. They review also indicated that corruption is the abuse of public office for private gains. This includes, when public officials accept, solicitor extort bribes and the private sectors offer bribes to subvert or circumvent public policies for competitive advantage and profit. The review further showed that the prevalence of corrupt leaders in Nigeria had a tremendous adverse effect on the quality of life, living standard and nation psyche. Therefore, as
Idris (2011) submitted, corruption affects the economy, political circle, socio-cultural setting, administrative structure and entire Nigerian environment. Furthermore, the review pointed that authors had investigated the concept of immunity, particularly of public officeholders. Malemi
(2006), Gray (1959), Kionka (1992) and the 1999 constitution are among the others in this regard. Black’s Law Dictionary, defined immunity as any exemption from a duty, liability, or service of process and other such exemptions granted to a public official”. According to the
Supreme Court of the Philippines (1988), the grant of executive immunity is to ensure that the exercise of presidential duties and functions are free from any hindrance or distraction, considering that the office of Chief Executive is a job which, aside from requiring all of the office-holder’s time, also demands undivided attention. The concept of sovereign immunity was one of the Common Law principles inherited by Nigeria as a former colony of Britain. For the purposes of this research, public officials” include current or former state governors, federal government ministers, and members of the federal Senate or House of Representatives, as well as other of other political appointees. The review demonstrated that while authors have dwelled on the phenomenon of corruption and its effects of the polity; and the immunity of public
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EFCC in reducing corruption in Nigeria has not been established, hence this study.
Methodology of the study was addressed in chapter three. Structural functional theory, which analyzes social phenomenon from the standpoint of its structures and functions, was adopted as the theoretical framework of analysis. The ex-post facto research design, which
Kerlinger (1977) defined the ex-post facto design as a form of descriptive research design in which an independent variable has already occurred and in which an investigator starts with the observation of a dependent variable was adopted as the research design. The qualitative method of data generation, which aims to gather an in-depth understanding of human behaviour and the reasons that govern such behaviour served as the method of data collection. In addition, data for the study was analyzed using qualitative, descriptive technique. This involved logically breaking down the data collected to draw inferences about the relationship between the variables that are of interest the researcher on the particular occasion.
Chapter four scrutinized anti-corruption laws and the immunity of public officials in
Nigeria. It was noted the upsurge in corruption in Nigeria beginning from the 1980s and during the prolonged period of military rule in the country which terminated in 1999 with the return of democratic government colour the perception of the country by the outside world. In order to halt the menace of corruption and enhance the image of the country, the new democratic regime of
Olusegun Obasanjo yielded to international pressure to promulgate anticorruption laws of
Independent Corrupt Practices and other related offences Act (ICPC,2000) and the Economic and Financial Crimes Commission (EFCC) Act 2002. The EFCC was first proposed by a 2002 law, the Economic and Financial Crimes Act 2002, but came into existence only on 11 April
2003. These laws were intended to checkmate financial and economic crimes, especially those
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116 by public officeholders and restore probity in the Nigerian polity. Just like the ICPC, the powers and responsibilities of the EFCC are contained in different sections of its enabling Act.
According to the Act, the commission is specifically charged with the responsibility of conducting investigations into crimes of a financial and economic nature, such as 419, money laundering, counterfeiting, capital and market fraud, cyber crimes, credit-card frauds, contract frauds, and terrorism and terrorism financing, as outlined in Section. Despite the intentions of these anticorruption laws, particularly the EFCC, the 1999 constitution also granted immunity to public officeholders. This constitutional immunity exempts them from legal prosecutions while in office. The immunity provided for under the Nigerian Constitution thus means that an action cannot be instituted against any of the office holders mentioned in section 308 while in office, and if already instituted, on assumption of office, the action must be discontinued. In conclusion, the immunity conferred by section 308 of the 1999 Constitution protects the private person of executive office holders absolutely, though for a period of time, which is, during the tenure of office of the beneficiary. Also, the immunity is restricted to legal proceedings in a court of law or a special tribunal established by law with the exception of an Election Petition Tribunal and the
Code of Conduct Tribunal.
Finally, the immunity does not protect them from investigation by law enforcement agencies such as the Police, the Independent Corrupt Practices Commission or the Economic and
Financial Crimes Commission. The utility of the executive immunity contained in the Nigerian constitution was called to question during the tenure of Nuhu Ribadu as Chairman of the
Economic and Financial Crimes Commission (EFCC) when he was reported to have said he had concluded investigations on about 24 serving governors who would be arrested on the expiration of their term in office on the 28th of May, 2007, on alleged economic and financial crimes. This
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117 opened a torrent of attacks on the immunity clause in the 1999 Constitution with some arguments to the contrary however. A sample of these opinions would be addressed under this subhead.
Arrests and prosecution of corrupt public officials in Nigeria by the Economic and
Financial Crimes Commission (EFCC) was the focus of the fifth chapter. Consequently, arrests and prosecution of alleged corrupt public officeholders since the inception of the commission was examined. It revealed that following its inception EFCC swung into action to investigate, arrest and prosecute corrupt public officeholders. Since then, the EFCC has been involved in a number of investigations, arrests and detention resulting in indictments, return and recovering of stolen money and imprisonments. The agency has been responsible for a number of high profile investigations such as those involving the former inspector general of Nigeria Police, Mr. Tafa
Balogun who stole more than $121 million and was jailed for six months, fined $30,000, and property worth $150 million seized (BBC News, 2005) and the arrest of Hon. Morris Ibekwe
(Imo State) for allegedly obtaining under false pretences, the sum of $300,000 from a German national and head of the Munch System Organization Company (EFCC, 2003). Others include the former governor of Lagos state, Major General Mohammed Buba Marwa, the former
Chairman of the Nigeria Ports Authority Mr. Bode George, Alhaji Bashir Dalhatu, the bribery scandal and fraud involving National Assembly Committee members and the Minister for
Education over budget, the former governor of Bayelsa state, Chief Depreye Alamieyeseigha, and the investigation of all state governors and local government officials as of December 2006.
The 2006 indictment of the serving Vice President, Atiku Abubakar for abuse of office, fraud and embezzlement by both the EFCC and Administrative Panel of Inquiry is indicative of how deep and pervasive corruption has permeated the Nigerian society. The list is in-exhaustive. So
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118 far the EFCC has received 4,200 petitions on illegal corruption, investigated or investigating
1,200 cases and has 406 cases in the courts.
6.2 CONCLUSION
Based on the findings of the study, we conclude that the enforcement of the economic and financial crimes laws in Nigeria by the Economic and Financial Crimes Commission
(EFCC) has not led to reduction in economic and financial crimes by public officeholders. This is supported by lingering huge corrupt cases involving former public officeholders in the various courts in the country.
In addition, the study demonstrates that immunity of public officeholders has not hindered the effective enforcement of economic and financial crime laws by EFCC in Nigeria.
Constitutional immunity of officeholders does not outlive the period of office of the occupants.
This is supported by the inability of the commission to successfully conclude the prosecution of former officer holders charged with economic and financial crimes. The commission has failed to conclude these cases years after they were charged to court. Other factors, rather than constitutional immunity of public officeholders may have accounted for inability of the EFCC to effectively enforce the economic and financial crime laws in Nigeria.
In addition, the study holds that the arrests and prosecution of government officials by the
Economic and Financial Crimes Commission (EFCC) has not reduced the incidence of corruption among government official in Nigeria. In terms of numbers, the sum total of the
EFCC’s convictions of public officials’ figures is underwhelming: a mere four convictions in eight years—between 2003 and July 2011. Only one of the four convictions was obtained at trial, with the others obtained through plea bargains that involved dropping some of the most serious charges against the accused. Allegations of corrupt practices among government officials and
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119 pending cases of corrupt government officials before the courts initiated by the EFCC shows that the incidence of corruption among public officials is far from abating. The performance of the
EFCC is continually undermined both by the dynamics of the Nigerian society beyond its control and failures of the commission.
6.3 RECOMMENDATIONS Based on the findings, the study recommends the following as measures for effective enforcement of economic and financial crime laws, thereby reducing the incidence of corruption among government officials:
§ There is an urgent need for the president to publicly signal a commitment to break with
the bad practices of previous administrations, especially political interference with anti-
corruption investigations and prosecutions;
§ Limit the power of the attorney general to interfere in anticorruption cases;
§ Increase the independence of the Economic and Financial Crimes Commission (EFCC)
through greater security of tenure of the EFCC chairman and other measures;
§ Critically examine the record in office of the current EFCC leadership;
§ Consider passage of the Special Courts (Establishment) Bill to designate specific courts
to hear corruption cases.
§ Set an example of institutional transparency by requiring all senior EFCC officials to
publicly declare the total value of all personal assets.
§ Investigate, arrest, and prosecute according to international fair trial standards, or
publicly explain the reasons for not prosecuting, politicians and government officials
credibly implicated in embezzlement of state funds.
§ Explore more proactive modes of cooperation with the Central Bank of Nigeria in
verifying the asset declarations of prominent public officials.
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APPENDIX Economic and financial crimes commission (EFCC) a graft advisory list (GAL) of high profile cases involving politically exposed persons in Nigeria Ayo Fayose Fed High Court Lagos Arraigned on 51 state counts Plea already N1.2 billion Granted bail Inherited case Former Governor case now transferred to taken defence lawyer often seeks long by court filed since 17th of Ekiti State Ekiti for that after he adjournments to prolong trial since 2007 Dec. 2006 accused opposed his trial in Lagos Adenike Grange FCT. High Court Arraigned on 56 state counts. Plea already N300million Granted bail Inherited Case (Former Minister Maitama taken defence lawyer often seeks long by court filed since 2nd of health) adjournments to prolong trial. Matter since 2008 April 2008 adjourned to Oct.25 Joshua Darive FCT. High Court Gude Arraigned on 23 state counts. Plea already N700million Granted bail Inherited case (Former Govenor taken but defence lawyer challenged court by court filed since 13th Plateau State) jurisdiction. But Appeal court threw out since 2007 July 2007 application and case now fixed for continuation of trail on Oct. 27 2010. Saminu Turaki FCT. High Court Arraigned on 32 state counts. Plea already N36 billion Granted bail Inherited case (Former Governor Maitama taken but defence lawyer challenged court by court filed since 13th Jigawa State) jurisdiction. Case stalled at HC while seeking since 2007 July 2007 stay of trial at appeal court. It is part of usual attempt to frustrate and prolong trial Orji Uzor Kalu Fed High Court Maitama Arraigned on 107 state counts. Plea already N5 billion Granted bail Inherited case (Former Governor, taken but defence lawyer raised preliminary by court filed since 11th Abia State) objection against charges. Lost at trial court since 2008 June 2007 but has gone on appeal to stay trial. It is part of usual attempt to prolong trial. James Ibori Fed High Court Asaba Arraigned on 170 state counts. Defence N6.2 billion Granted bail Inherited fresh (Former Governor lawyer challenged Kaduna Federal court by court charge since Delta State) jurisdiction, lost at trial court but won at since 2008 August 2009 appeal court case re-assigned by CJ to Asaba FHC. Without taking plea suspect applied to quash charges prosecution opposed application but trial judge quashed the charges Dec. 19 EFCC filed appeal Dec. 23 2009 and Jan. 8 2010.
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Iyabo Obasanjo FCT. High Court Arraigned n 56 state counts. Plea already N10 million Granted bail Inherited case Bello (Serving Maitama taken but case stalled as defense lawyer filed by court filed since 2nd Senator) to challenge charges. Application pending for since 2008 April 2008 determination. This is part of frivolous applications to delay trial.
Lucky Igbinedion Fed High Court, Enugu Arraigned on 191 state counts. Applied for N4.3 billion Case Inherited case (Former Governor plea bargain and convicted but EFCC has determined filed since 23rd of Edo State) appealed the judgment to seek for stiffer 2008 Jan. 2008 sanctions Gabriel Aduku Fed High Court Maitama Arraigned on 56 state counts court ruled on N300million Case Inherited case (Former Minister no case against suspects. determined in filed since 2nd of Health) 2008 April 2008 Jolly Nyamo Fed. High Court Gude Arraigned on state counts. Plea already taken N1.3 million Granted bail Inherited case (Former Governor and trial begun after all applications filed by by court filed since 13th of Taraba State) the accused to stall in trial have been since 2008 July 2007 dismissed by the supreme court. Trial fully commenced and on-going at FCT HC. Chimaroke Fed. High Court Lagos Arraigned on 105 state counts. Plea already N5.3 billion Granted bail Inherited case Nnamani (Former taken but case is stalled as defense lawyer by court filed since 11th Governor of filed to transfer case to another judge on since 2007 Dec. 2007 Enugu State) allegation of bias against trial judge even as counsel has again filed to challenge court jurisdiction. This is equally an attempt to prolong trial. Micheal Botmang Fed High Court Maitama Arraigned on 31 state counts. Plea already N1.5 billion Granted bail Commenced by (Former Governor taken but trial stalled due to suspect’s ailment by court Waziri on 18th of Plateau State) on dialysis since 2008 July 2008 Roland Iyayi FCT High Court Arraigned on 11 state counts. Plea already N5.6 billion Granted bail Commenced by (Former Managing Maitama taken. Trial on-going court taking by court Waziri on June Director of prosecution witnesses testimony. since 2008 2008 FAAN) Nyeson Wike FCT High Court Arraigned on state counts court fresh charges N4.670billion Granted bail Commenced by (Serving Chief of Maitama EFCC already appealed judgment. Appeal by court Waziri on June Staff to Governor pending at appeal court. since 2008 2008 of Rivers State)
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Kenny Martins FCT High Court Arraigned on 28 amended state courts. Plea N774 million Granted bail Commenced by (Police Equipment Maitama already taken and trial on going witnesses by court Waziri on June Fund) under close examination continuation of trial since 2008 2008 fixed for November. Prof. Babalola Fed. High Court Arraigned on 11 state counts. Plea already N5.6 billion Granted bail Commenced by Iymishade Maitamas taken and trial on-going (N5.6 billion). by court Waziri in June (Former Minister Prosecution witnesses under cross- since 2008 2008 of Aviation) examination. Boni Haruna Fed High Court Maitama Arraigned on amended 28 state counts. Plea N254 million Granted bail Commenced by (Former Governor taken adoption of motion slated for Nov. by court Waziri in 2008 Adamawa State) since 2008 Femi Fani Kayode Fed High Court Lagos Arraigned on 47 state counts. Plea taken but N250 million Granted bail Commenced by (Former Minister case stalled as a result of trial court’s refusal by court in Waziri in 2008 of Aviation) to admit e-print of suspect’s statement of 2008 account as evidence. EFFC on appeal at supreme court. Prince Ibrahim FCT High Court Abuja Arraigned on 28 amended state counts. Plea N774 million Granted bail Commenced by Dumuje (Police taken and trial on-going. Prosecution by court Waziri in June Equipment Fund) witnesses under cross-examination since 2008 2008 continuation fixed for Nov.9 Bode George Fed High Court Lagos Arraigned on 68 state counts. Plea taken and N100 billion Granted bail Commenced by (Chettain of the trial concluded accused and sentenced to 2 by court Waziri in Dec. ruling party PDP) years convict on appeal while serving jail since 2008. 2008 term. Has been in jail after conviction in Oct. 2009 Rasheed Ladoja Fed High Court Lagos Arraigned on 33 state counts. Plea taken and N6 billion Granted bail Commenced by (Former Governor trial on-going. Prosecution witnesses slated by court Waziri in 2008 of Oyo State) for cross-examination in Nov. since 2008 Four Snr. Zenith Fed High Court Port Arraigned on 56 state counts. Plea taken but N3.6 billion Granted bail Commenced by Bank Managers. Harcourt case stalled over an injuction by Rivers State by court in Waziri government which is a party in the case to 2009 stop EFCC. Injunction being challenged at Appeal Court.
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Mallam Nasir El- Fed High Court Abuja Arraigned on 8 state counts suspect charged Suspect at Commenced by Rufai (Former for corruption and abuse of office. Plea taken large but Waziri in 2009 Minister of and case adjourned for trail but accused returned to Federal Capital challenged jurisdiction of court as a ploy to the country. Territory) delay trial. Case adjourned. Interrogated on May 4, 2010 and arraigned on May 12 Sen Nicholas FCT high court Abuja Arraigned on 158 state counts. Plea taken N5.2 billion Remanded in Commended by Ugbade (Serving (This is the rural while prosecution has filed mote charges prison candy Waziri in May Senator) Hon. electrification agency against suspects filed to quash charges but and later 2009 Ndudi Elumelu case involving a serving application thrown out by court. granted bail Hon. Mohamed senator, serving members court in Jib Hon Faulnu of the house of 2009. Igwe (Serving representatives the Members of permanent secretary of House of Rep Dr. the ministry of power and Aliyu Abduliah other high profile public (Serving Fed. officers. Perm. Sec) Mr. Samuel Ibi. Mr. Simon Nanle Mr. Lawrence Orekoya. Mr. Kayode Osedeji Mr. A. Barba Jajun Prof. B. Solan Federal high court, Abuja Arraigned on 61 state counts. Plea taken N636 million Suspects Commended by Mokal Muttwang. while more charges were filed against remanded in Waziri in May Micheal Adle. suspects due to appliance of Prof. Sokan prison 19 2009 Andrew Ekpanobi, Matter adjourned to November 9 for suspects custody and (All directors) to take plea on amended charges later granted Allexander bail by court Cosman (MD in 2009. Intermarket Ltd),
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This is the UBEC case where high profile public servants conprived with an American Alexander Cozman) to defraud the government Dr. Ransome Federal High Court Arraigned on 196 state counts. Plea taken N1.5 billion Granted bail Commended by Owan Mr. Abuja trial billed to commence while more charges by court in Waziri in April Abdularahuuman were filed against suspects. Further hearing 2009 22 2009 ado. Mr Adulrasak stated for Oct. 29. But the FG has withdrawn almi Mr. charges against the accused persons who Ownumaeze were consequently discharged by the court on Iloeje. Mrs. Grace Sept. 16 2010. Eyonma. Mr Mohammed Bumu Mr. Abimbola Odubiyi Dr. Yuguda Manu Taraba State High Court Arraigned on 37 state counts. Plea taken and N17 million Suspect Commenced by Kaigama, 5, Jalingo matter stalled as suspected dropped dead. remanded Waziri on Oct. Chairman Taraba imprison 10 2009 State Civil Service custody. Co- Commission accused, Yakubu Danjuma Takun, at large Chief Joe Musa, FCT High Court Lugbe Arraigned on 12 state counts. Plea taken and N1012 billion Suspects Commenced by DG National (Justice Olukayode defence lawyer filed applications to stall trial remanded in Waziri on July Gallery of Art, Adeniyi) but lost the bid. Matter adjourned for trial Kuje prison 20 2009 Olusegun ogumba, Nov. 19/20 2010. and later Chinedu Obi, granted bail Oparagu by court in Elizabeth. Kweku 2009
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Tandoh, (All directors of NGA) Dr. Dayo Fed High Court, Abuja Arraigned on 17 state counts. Plea taken and N479 million Suspects Commenced by Olagunju, Ez. Sec. Juastice Anuli Chikere matter adjourned for commencement of trial and 2.5 billion remanded in Waziri on July National Oct. 22, 2010 Kuje prison 24 2009. Commission for and later Mass Literacy, granted bail Adult & Non- by court in Formal Education. 2009 Joshua Alao, Alice Abang, Jibrin Waguna, Ahmed Waguna, Ahmed Abubakar, Shehu Abdullahi, Dr Victoria Kin- Nwachukwu, Adamu Khalid, Moses Oseni, Francis Awelewa & Bashir Suleiman Professor Innocent Fed. High Court Abuja Arraigned on 14 state counts. Plea taken N145 million Suspects Commenced by Chukka Okonkwo, Justice Mohammed adjourned to Nov. for trial. remanded in Waziri on July FMR VC. Imo Garba Umar Kupe prison 30 2009 state university, and later Uchechi Nwugo & granted bail Wilfred Uwakwe by court in 2009 Dr. Batholomew FHC Ikoyi Lagos Justice Arraigned on 28 state courts. Plea taken and N187 billion Suspect Commenced by (Emr CEO union Dan Abutu Gise adjourned to Nov for trial remanded in Waziri on Bank Plc) Bassy EFCC Augu. 31 2009 Ibong Henry custody but Onymen & Nned granted bail Albert Opeada on 14/09 (Ex-director)
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Raymond Opend FHC Ikoyi Lagos Justice Arraigned on 18 state counts. Plea taken and N131 billion Suspect Commenced by (Emr Chairman Dan Abutu case adjourned to Nov for trial. remanded in Waziri on Aug. Inter National EFCC 31 2009 Bank Plc. Heanth custody, but Enuha Iledu kalu granted bail C.A. Alahi Samuel on 14/09 Adegbute Isyaka Omat, Sani Adants Okey Nwodo FHC Ikoyi Lagos Justice Arraigned on 11 state counts. Plea taken and N93.1 billion Suspects Commenced by Dan Abutu case adjourned to Nov. for trial. remanded in Waziri on Aug. prison 31 2009 custody, but granted bail on 15/09 Adamu Abdulihai. Fed High Court Lafia. Arraigned on 149 count charge suspect N15 billion Suspects on Commenced by Former Gos of Nasarawa Justice INBoha granted by count case shield for trial in Oct. court bail Waziri on Nasarawa State March 3 2009 Attahiru Batawa, Sokoto State High Court Arraigned on 17 count charge matter stalled N5 billion Suspect Commenced by Former Governor HC stalled granted application at appeal remanded in Waziri on Dec. of Sokoto State count. prison 16 2009 custody and later granted bail by court case slated for trial Francis Okokuro, Fed High Court, Abuja Arraigned on 6 count charge matter stalled N2.4 billion Suspect Commenced by Bayelsa State due to accused application for stay. remanded in Waziri on Accountant prison March 24, 2010 General custody till April 13 Dr. Charles Silva Fed High Court, Abuja Arraigned on 6 count charge matter stalled N2.4 billion Suspect Commenced by Opuala due to accused application for stay. arraigned and Waziri on remanded in March 24, 2010 Kuje prison custody on April 13 till
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he meets bail conditions Chief Osa Osunde Fed High Court, Lagos Arraigned on 33 count charge matter N55 billion Suspect Commenced by (Fmr Chairman adjourned to Nov for trial. arraigned on Waziri on April Afribank) and April 21, 21, 2010 educators Liban 2010 Isah Zailami, Remanded in Chinedu Onyia EFCC and Henry custody and Arogundade later granted bail by the court Dr. Erastus FHC Ikoyi Lagos Justice Arraigned on 22 count charge. N27 billion Suspect Commenced by Akingbola, Mohd Idris arraigned on Waziri on Aug MD/CEO, IB Plc Aug 13 23, 2010 penances custody till Aug 23 Sani Lulu, & 3 FHC. Abuja Justice Arraigned on 10 counts case adjourned till N1.5 billion Suspects Commenced by other NFF board Donatus Okorowa Oct 5, 2010 for trial arraigned Waziri on Sep members Sep. 7 7, 2010 remanded in prison till 13 when court released them on bail. Source: Onyemaizu, C. (2010:31-35), “A list of fury”. The source, November 8.
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