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Beating the Corruption Enterprise A Policy Approach to Criminal Justice in Nigeria

Perpetrators of criminal acts routinely defeat the machinery of justice, enabled by their understanding of the limited capacity of state agents, borders and institutions to prevent crime. The traditional view is that an offender must have criminal intent even if he is ultimately influenced by forces in his environment but external to his control. Yet certain criminal behaviour, even if entirely involuntary, usually lacks the essential features that will adjudge it criminal in the eyes of the law.

There are, particularly in property and economic crime, a host of factors that drive the volition of offenders-to-be—factors that, identified, could enable the state to defeat crime. It is sufficient to state that there is no ‘be all and end all’ panacea to corrupt practices. Corruption will outlive all of us and enter the next generation for certain. However, the reason corruption escalates to endemic proportions is no different from any other crime or proscribed conduct. This reason being the failure of combatants to understand the ecosystem within which the crime operates. As objectionable as corrupt practices are, the drive to curb and eliminate them necessarily requires the same strategic, deliberate and critical thinking employed by their perpetrators. ‘Intelligent guess work’ by the state has proven to be no revolutionary or effective solution to corrupt practices.

To understand the ecosystem of crime, one must be aware of the nature of human behaviour, the forces at play that influence this behaviour in various forms, and the levers available to control and contain a departure from what is considered to be good order. As in most natural habitats, a diverse range of creatures, large and small, coexist in the ecosystem; therefore, as in the jungle, it is impossible to list or treat all the features of ‘the criminal enterprise’ or to treat it like a homogeneous whole. Nevertheless, certain salient features are worth examining critically, and could be instructive in developing a national plan of action against corruption.

THE ECOSYSTEM OF CRIME

Opportunity, motive, benefit and sanction—in that order—are all stations in the stream flow of corrupt practices that the state should recognize. The first three stations provide multiple avenues to address crime before it materializes. Perhaps the least effective of all, the final station gives the state a last-resort chance to address crime when it finally materializes. In examining the stream, the challenges and failings of our current system of justice become more apparent. By failing to recognize the entire chain of criminal activity and to use these insights to inform national policy and planning, and by focusing solely on sanctions, the state continuously struggles to address and abate crime.

OPPORTUNITY

Francis Bacon, England’s first Queen’s Counsel and later jurist, once said, “Opportunity makes the thief.” Regrettably, in the Nigerian context, this does not refer to the often-touted ‘immense opportunities’ and access to national resources. It refers, instead, to opportunity created by lack of or limited access to information, and the general opaqueness in public administration.

Limited access to public information readily generates unlimited opportunity for corrupt practitioners, such that the ‘sale’ of government services is the most generic form of public sector corruption. Essentially, withholding public information creates the need to ‘pay’ for such information. The market for public information is further fragmented when public officials enjoy impunity, and create uncertainty in the minds of the tax-paying public. When ‘successful’, withholding and selling off public information gives greater confidence to both the public official and the patron of his services. Confidence, then, engenders more and more of such transactions.

Additionally, corrupt practices—ranging from criminal activities involved in obtaining certified copies of public documents to unlawfully securing capital projects—thrive when the mechanisms of governance lack both transparency and accountability. And when the state fails to stand between the need and greed of participants, multiple opportunities for corruption are created.

In 1988, American economist, Robert Klitgaard, propounded the now famous formula for corruption. From an economic point of view, he described corruption as consisting of three main variables: monopoly plus discretion less accountability. The most significant variable here is, obviously, accountability. Granting elected officials or private individuals unregulated monopoly and discretion over certain powers is dangerous enough without it being compounded with the absence of a system that ensures the answerability of these individuals.

It is then easy to see that the present attitude of public office to access to information for taxpayers is inadvertently feeding the corrupt practices against which the State passionately advocates. In light of the opportunity factors mentioned above (limited access, lack of information and opacity), opening up government process and procedure to taxpayers cannot be over emphasized in the fight against corruption. Such a move would allow the Nigerian government and public to embrace policy, and truly live by principles of transparency, accountability, fiscal transparency, anti-corruption, and citizen engagement—a right guaranteed in Section 14 (2) (c) of the Constitution. This constitutional provision enshrines the right of participation by the people in their government with the corresponding duty in the government to “abolish all corrupt practices and abuse of power” provided by Section 15 (5) of the same Nigerian constitution. Therefore, it is not only a practical imperative for the government to address openness of government in all its ramifications; it is also a legal one.

It is highly commendable that, in 2016, the present administration moved to join the Open Government Partnership, a programme that provides an international platform for domestic reformers to make their governments more transparent, accountable and responsible to citizens. Among the Partnership’s initiatives is Open Data Access which involves ensuring that Nigeria’s data is as accessible, discoverable and as usable as possible, in order to foster greater participation and collaboration between stakeholders. By promoting transparency in the government, Open Data Access basically improves civic engagement, supports research, and facilitates the development of innovative solutions to local issues. With more of these moves, the Nigerian government will be able to curtail the opportunities that allow public thieves to thrive.

MOTIVE

Two types of corruption underscore motive. These are ‘corruption of greed’ and ‘corruption of need’. This essay focuses on corruption of need, leaving for another time, corruption of greed, which stems from inherent psychological problems in those who exhibit it.

Several motives have been cited as the causes of corruption in Nigeria including poverty, leadership type, greed, a weak legal system, culture etc. The word ‘motive’, however, suggests reason, purpose, or rationale and not justification. Motive underlines the personal satisfaction conferred on the perpetrator of a corrupt act that triggered him/her to so act whereas justification does not necessarily have this connotation.

There is, often, the general conception that corruption must be triggered by a ‘wrong or sinister motive’ but this is not always the case as seen in the foregoing. The existence of corruption in Nigeria can arguably be linked to a strong motive of ‘lack’ ordinarily linked to poverty. Poverty denotes a serious lack of access to the means for proper existence, while absolute poverty refers to the lack of access to the means necessary to meet basic needs such as food, clothing and shelter.

In 2016, writer and social critic, Ayo Sogunro, astutely defined corruption of need as emanating from the aggregation of the negative consequences of inequalities in a society. He argued that corruption of need is generated by conflicts inherent in existing legal obligations in a dysfunctional political or economic system and the impact of those conflicts on the natural instinct for self-preservation from the unjustifiable adverse effects of that system. Corruption, in other words, arises when the government fails to fulfil its legal obligations to the governed.

The African Charter, which provides for human and people’s rights, is domesticated holus bolus into Nigerian Law as the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act. Its impact leaves much to be desired, notwithstanding that all three tiers of government are jointly tasked with its implementation. The minimal impact obtained so far is connected to the distinction in justiciable and un-justiciable human rights in the Nigerian constitution.

The Constitution of the Federal Republic of Nigeria, in its second chapter, makes provision for the Fundamental Objectives and Directive Principles of State Policy, which, if fully implemented, can bring poverty to an end in Nigeria.

Section 14 (2) (b) of the Constitution provides that:

“[T]he security and welfare of the people shall be the primary purpose of government.”

Section 15 (5) contemplates a corrupt-free society and provides that:

“[T]he State shall abolish all corrupt practices and abuse of power.”

Section 16 provides in its sub-section 2 (d) to the effect that:

[A]dequate shelter and food amongst other necessaries should be provided for all citizens.”

Finally, Section 18 (1) mandates the government to:

“[P]rovide equal and adequate educational opportunities at all levels.”

Sadly, the provisions are non-justiciable by the provision of Section 6 (6) (c), which excludes the jurisdiction of the courts on issues relating to the contravention of the provisions of Chapter 2, in respect of the fundamental objectives and directive principles of state policy. The executive arm of government is, as a result, emboldened to shy away from its duties since they need not comply with the provisions of Chapter 2 unless the legislature enacts specific laws aiding its enforcement by the court.

Considering the promise of access to the bare necessaries of health facilities, education, food and shelter, all assured to citizens in the basic law of the land, it could be argued that Nigerian corruption is fed by lack. This becomes even more evident when one considers the relationship between the compulsive tendencies to stock up much wealth whether legally or otherwise by public office holders because of the fear of returning to a state of lack and no future prospects. Very simply, the failure of the government to promote and enforce Chapter 2 of the Constitution engenders motive and results in corruption of need.

Judicial activism and jurisprudential change albeit gradual, are a step in the right direction in bringing these rights, which are necessary for improving the quality of human life, and by extension, curbing corruption. A recent laudable judgment in the case of LEDAP v. Federal Ministry of Education & AGF, has made enforceable, the provision of Section 18 (3). During this case, the court, in relying on the Supreme Court decision in Attorney General of Ondo State & Ors v. Attorney General of the Federation, held that the enactment of the Universal Basic Education Act 2004 by the National Assembly has made the right to free and compulsory primary and free junior secondary education contained in chapter 2 an enforceable right. It is hoped that judicial activism is extended to give justiciability to all other rights in Chapter 2, upon reliance of the domestication of the African Charter. The enforceability and implementation of these basic rights would go a long way in removing the strongest motive for corruption that arises from need in Nigeria.

Benefit

Where the criminal justice system is perceived as weak or ineffective, offenders will constantly seize opportunities to cheat the law. They may do so in the belief that the system is more beneficial when one goes against it than when one complies with it.

Consider, for example, the pitiful income structure of several public officers which leaves little to the imagination:

A Grade 4 sub-national (junior) government official in Southern Nigeria earns a paltry sum of about N20,000 upon entry with a salary increase of N800 across 15 promotional steps. The expected income of this officer when—if at all—he gets to step 16 is about N32,000, while a Grade 17 (step 1) sub-national (senior) government (officer in Southern Nigeria earns about N347,000 with a salary increase of N13,000 across 9 promotional steps.

The salary structure of sub-national government officials in Northern Nigeria remarkably differs from that of Southern Nigeria. While a Grade 4 entry-level (junior) official earns about N31,000 with a fixed salary increase of less than N2,000 across 15 promotional steps; a Grade 17 (step 1) officer earns about N431,000 with a salary increase of N15,000 across 9 promotional steps.

“Chapter 2, Section 8, Rule Number 10” of the Public Service Rules, 2008 provides that: “the compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.”

Without apologizing for criminal conduct, it is easy to see how the current state of affairs motivates crimes. The implication of the meagre sum earned by government workers on both their welfare and total income upon retirement is a slap on the face of our public service. Government workers are not financially motivated to practice integrity in service delivery or execution of projects but are, instead, encouraged to be corrupt. Junior officers are at the mercy of superiors as these superiors leave them with little to no option than to participate in the corrupt activities of the relevant ministry, department or agency (MDA) with the hope of “settlement”.

In truth, the chain of command is hard to ignore as no public office holder/worker gets away with corruption without having received help from other officers in his MDA. The heightened level of poverty and unemployment results in a wide gap between lack and affordability, which in turn feeds the gains of criminal enterprise.

The financial motivation for corruption resides in the private sphere as well. In most African countries, there are strong family and communal ties to a person especially one who attains a high societal status. This person is morally and culturally expected to give back to his family and society, such that pressures are mounted so high that it cannot be reasonably expected of such office holder to carry out the responsibilities forced on him without dipping his hands in the communal purse. Ours is a society where a ‘generous’ man’s source of wealth is of little or no concern to his neighbours. The wealth of a man is largely a determining factor for his receipt of honour, awards and accolades by communities, social clubs, religious bodies and other private organizations. This implies that people who benefit from the largesse of these corrupt individuals rarely ask questions.

With the criminal justice system underperforming, corrupt practices have their assessable profit in Nigeria. Offenders have not always been seen to get ‘just deserts’. As an offender embarks on a criminal enterprise, he/she evaluates his/her situation with the prospect of benefit and the risk of effective sanction, and based on this, he/she decides that the benefit outweighs the risk or weight of sanction. The enterprise continues to proliferate while the public sector fails to address the abysmal remuneration of the clear majority of public workers.

Recall the trend created by AG Ondo State v. AG Federation that the Chapter 2 rights of the Nigerian constitution will be enforceable by the courts where the Legislature has enacted laws aligned with those rights. That this trend was followed recently in LEDAP v. Fed Ministry of Education should indicate to our legislature that enacting an Affordable Health Care Act or a New Realistic Minimum Wage Act would go a long way in defeating the criminal enterprise of corrupt practice in Nigeria.

Sanction

Despite the seeming motives and justifications for crime, it is pertinent to reiterate that no society should condone corruption and no known law supports the mythical medieval character called ‘Robin Hood’. To do so is to call for chaos and anarchy. Carrying out a corrupt act in good faith or for a worthy cause will not excuse such offenders.

Nigeria has been most active and vocal in the sanction link in the ecosystem chain of corrupt practices. Over the years, several sanction-focused initiatives against corruption have been institutionalized including: the Economic and Financial Crimes Commission (EFCC) established in 2003 to complement the zero-tolerance for corruption crusade of the Obasanjo Administration; the Independent Corrupt Practices and Other Related Offences Commission (ICPC), whose mission is to rid Nigeria of corruption through lawful enforcement and preventive measures—also inaugurated under President Obasanjo; the Code of Conduct Bureau (CCB), a pioneer anti-corruption agency set up by the Federal Government of Nigeria in 1989, with a legal mandate under the Babangida regime to ensure that the actions and behaviour of public officers conform to the highest standard of public morality and accountability.

Other sanction-centric efforts have included include setting up of probe panels, commissions of enquiry, and tribunals (e.g. the Failed Bank Tribunal) to try corrupt individuals. Laws such as the Money Laundering Act of 2003, Advance Fee Fraud and Fraud Related Offences Act of 1995, Foreign Exchange Act of 1995, Corrupt Practices and Other Related Offences Act of 2000 were also enacted to support probe panels and tribunals.

It has even been suggested within the public sphere that the death penalty be made applicable to corruption convicts in Nigeria. As appealing as it may seem to many citizens in Nigeria, the death penalty from all observable evidence—the continued occurrence of armed robbery being a case in point—has not succeeded in deterring crime. Presently, there are more than 1,000 prisoners on death row in Nigeria. Other than the three death-row inmates executed in Edo State last year, since 2013, the executive has been wary of signing death warrants.

Sanction measures, while glamorously cited by commentators in the media and practitioners in policy circles, have not proven to be a viable means of ending corrupt practices. Yet they appear to be the only station – the last in the stream flow of corrupt practices—that the government and legal practitioners have concentrated time and resources. In April 2016, a young boy was said to have been caught stealing in Delta State and in a breach of the law, his apprehenders cut one of his hands off without giving him a chance to be prosecuted. Earlier this year, pictures presumed to be of the same boy surfaced online because, despite the severe unlawful sanction meted out on him, not too long after his punishment, he was allegedly seen stealing again.

Focusing on sanctions without addressing the other upstream components of criminal enterprises such as corruption makes for an ineffective crime mitigation strategy. Yet there abound multiple opportunities to undermine corrupt motives by decreasing opportunities for theft engendered by poor transparency and lack of access to public information; offering a viable path out of poverty and absolute poverty for the vast majority of Nigerians through constitutional guarantees and policy initiatives; and making crime less profitable for those facing professional and social pressures to steal. To deal a fatal blow to many corrupt machinations, the state must turn its attention to the entire ecosystem and address with strong measures, the opportunity, motive and benefit aspects of criminal activity⎈