Anti-Corruption Efforts in Nigeria - Essay Example

?Anti-corruption Efforts in Nigeria Introduction In McMullan’s theory of corruption, he argues that there is some level of corruption in all governments and in all public services everywhere.1 McMullan also acknowledged that corruption is far greater in some countries than in others, but it is entirely rare to find one country in which corruption can be described as virtually non-existent.2 Corruption in Africa has occupied academic debate particularly since the continent has suffered from political and economic malaise since colonization.3 In seeking to understand the causes of corruption in Africa generally, Nigeria is singled out as Africa’s most corrupt state and as a symbol of Africa’s political, economic and social struggles moving forward in the post-colonial era.4 This research paper focuses on corruption in Nigeria as an African state noted for corruption and seeks to understand its prevalence in the context of anti-corruption measures. Corruption is characterized as a “global phenomenon”, and only capable of being understood in “its social context”.5 In the case of Nigeria, there is a range of complex and deeply-seated institutional and social factors contributing to corruption, most of which emanate from the experiences of colonial and post-colonial Nigeria. Corruption emerged as the primary method by which to survive during the period of decolonisation and with no other viable means of survival, corruption ultimately informed political conduct and “competition” in post-independent Nigeria.6 The corrupt reputation of Nigeria corresponds with post-colonial Africa’s long series of political and economic let downs. To begin with, colonial rule created conflicts among ethnic groups, alienated Nigerians from the country’s resources, exploited Nigerians and their natural resources and essentially deprived Nigerians of representation. Colonialism in all of Africa involved the use of “material inducements” as a means of compelling chiefs and African administrators to support and cooperated with colonists’ projects characterized by exploitation.7 Corruption in post-colonial Africa, including Nigeria is merely a learned and inherited political policy acquired during colonialism.8 During decolonization, Nigerians were left struggling to regain control of a deeply divided nation and continuously confronted significant economic and political chaos.9 Thus the post-colonial chaotic state of Nigeria’s socio-political and economic systems, together with the corrupt and dehumanising political experiences of colonialism created and perpetuated corruption in Nigeria. Nigeria is described as among the world’s most corrupt countries and is often associated by outsiders with fraud and dishonesty. However, it has been argued that just as political and economic degradation contributes to corruption, corruption likewise results in political and economic degradation.10 Regardless of whether corruption is an obstacle to development or contributes to underdevelopment, corruption is so widespread throughout Nigeria that the country is perhaps a unique case. Arguably there is no real rational explanation for the link between corruption and underdevelopment in Nigeria. Since corruption is so widespread in Nigeria and has persisted for so long it is impossible to know with any degree of certainty whether or not corruption is responsible for underdevelopment in Nigeria or underdevelopment is the cause of corruption. The only rational conclusion is that that corruption has become a learned way of life in Nigeria. It is argued that corruption has become so entrenched in the political and social spheres, that even the members of society who may be victims or critics can hardly go around it and so, they are also prone to reproduce and perpetuate corruption.11 Therefore, despite efforts to counter corruption via anti-corruption policies and laws, corruption in Nigeria continues on unabated.12 Building on the central idea of its topic which suggest that ‘In many countries corruption has become so endemic that it is perceived as normal. People are not necessarily genetically programmed to pay bribes, yet they do it for a range of complex and deeply-seated institutional and social reasons. How to break this cycle of normality is more difficult than penalising individual corrupt acts.”, this paper examines the laws, policies and practices against the background of Nigeria’s culture, politics and economics with the aim of identifying why anti-corruption efforts have been for the most part ineffective. It is argued that since independence, all political regimes and institutions and the civilian population have been either victims of or participants in corruption. This fact together with violence, political, economic and social decay has compromised anti-corrupt efforts.13 Political leaders enter the regime promising to bring the problem of corruption under control, but eventually leave office under a cloud of suspicion.14 Thus, it is not overstated to imply that in Nigeria, corruption has become such a significant part of the institutional and social structures, that breaking the cycle of normalcy is more difficult than penalising individual corrupt acts. This study is divided into four main parts. The first part of this paper puts the mina terms into context by defining corruption and its application in the political and social context. The second part of the paper provides details about the history and current status of corruption in Nigeria. The third part of the paper examines Nigeria’s anti-corruption laws, policies and practices. The final part of the paper critically analyses arguments demonstrating why anti-corruption laws and policies have failed to be effective in Nigeria. Corruption: Definition and Concepts Although corruption is defined in a number of ways, this research study will primarily consider the definition used by the World Bank: “the abuse of public power for private benefit”.15 Corruption however, is not restricted to public office and can be perpetuated by private citizens and private organizations.16 This definition is adopted purely for the purpose of providing a basis for examining anti-corruption measures in Nigeria. In other words in examining anti-corruption measures in Nigeria, this paper focuses on corruption in the context of abuse of public authority for private gain. This is because conduct by private individuals arising to the level of corruption is typically dealt with by reference to ordinary offences of dishonesty. At the same time, private individuals often have complicity in that they can procure acts of corruption on the part of public officials. In examining anti-corruption based on the a definition in which public officials are the primary offenders, we need to also examine the extent to which anti-corruption measures in Nigeria take account of complicity on the part of private parties. In seeking to understand the prevalence of corruption in Nigeria, Osoba’s definition of corruption however, is more instructive as it provides some insight into the consequences of corruption. In this regard Osoba defines corruption as: ...antisocial behaviour conferring improper benefits contrary to legal and moral norms, and which undermines the authorities’ capacity to secure the welfare of all citizens.17 In this regard, Osoba’s definition of corruption not only expands on the working definition of corruption provided by the World Bank, but also captures the nature of the widespread corruption throughout Nigeria’s political and social institutions. Corruption as the abuse of public office for private gain in Nigeria has impacted the government’s ability to safeguard the welfare of Nigerians and in particular to effectively combat corruption for the benefit of Nigerians generally. To this end, corruption is a way of life for Nigerians in all factions of daily life.18 Even so corruption begins at the top and as Eker explains, corruption is typically associated with the abuse of official power for realising a private or personal benefit in contravention of existing laws and regulations.19 In his theory of corruption , McMullan provides a conceptual explanation for understanding corruption and how it functions in public office. According to McMullan, while political institutions typically have public objectives, human beings working in these institutions usually have personal objectives. Ideally, human beings working in public institutions can achieve public objectives while satisfying personal goals. For instance a prison warden may take his job to take care of a large family. However, if the warden decides that he is not receiving enough in terms of wages and decides to exchange favours to prisoners for money, he is corrupt. This is because he is abusing an official position for a private goal which is in conflict with the official goals of the public institution he serves.20 The evils of corruption can be conceptualized by comparing it to similar activities of private individuals. When private individuals abuse positions of power, they are typically criminalized and characterized as offences of theft, embezzlement, fraud and other crimes of dishonesty.21 While it is important, in seeking to understand corruption in the Nigerian context, to define and conceptualize corruption; the next section reveals that the pervasive nature of corruption is demonstratively the norm and has become endemic so that its definition and concepts is no longer internally abhorrent. Corruption in Nigeria Nigeria is world’s eighth largest exporter of crude oil, earning more than US$56 billion from its exports in 2006. This potentially rich country is described as having “one of the world’s poorest tract records on delivering development to its people”.22 Much of it is attributed to the fact that it has been “crippled” by “corruption scandals for decades.23 For example, between 1983 and 1999, Nigeria’s government lost over US$1 billion each year in respect of bribes paid to elite politicians from “smuggling networks.24 Moreover, the United Nations International Human Development Indicators ranks Nigeria 156th out of 187 countries from 1980-2011 and the25 Transparency International Corruption Perceptions Index 2011, places it 143rd out of 182 countries.26 According to Aluko, corruption is the “most single canker work that has eaten into the fabric” of Nigeria’s society.27 Aluko argues that corruption has become so pervasive that a majority of Nigerians are “corrupt in one way or the other”28 making corruption essentially a “way of life in Nigeria” and a problem that past and current governments have little desire or lack the wherewithal to bring under control.29 Therefore, Nigerians typically perceive public institutions as “systematically corrupt and unresponsive”.30 Citizens’ perception of the state of corruption coupled with the government’s failure to correlate effective governance in line with development and the tendency of public figures pursuing personal goals as opposed to public goods have resulted in a majority of Nigerians becoming increasingly apathetic with respect to “civic responsibility.” 31As a result, Nigeria has not only underachieved in terms of development, but the public systems are not perceived as legitimate by citizens who in turn have resorted to similarly corrupt methods of survival and defence.32 Corrupt acts are committed on both a “grand” and a “petty” scale in Nigeria.33 For example, it has been reported that corruption is so prevalent in Nigeria that approximately half of all drugs offered for sale to the public in Nigerian pharmacies are counterfeit; this is an illustration that reveals how34 the effects of corruption spread beyond an individual crime to harm a nation. From a social perspective, the economic and political harm caused by corruption is currently giving rise to a great deal of social unrest which creates chaos and stunts social development.35 From a political perspective, corruption is also perceived as the best method for obtaining state control with the purpose of accumulating private wealth and social improvement. As Akindele argues: “This bleeding of the nation’s economy for personal benefits had variously contributed to the leakage of capital from Nigeria for illegal deposit abroad. This misuse of executive official position to misappropriate public money in itself, has created a virile political landscape for the politicalisation of corruption...”36 Indeed, corruption appears to be a motivating factor for gaining public office. It therefore follows that the political will to combat corruption is absent. If state officials are driven to serve for the purpose of gaining access to the state and its resources and opportunities for personal gain, anti-corruption measures can hardly become a priority and it the certainty of implementation is hardly achievable. Apathy by the general public coupled with a lack of faith in the government relieves the government of the burden of having to combat corruption. Therefore a cycle of normalcy is created and it is more difficult to break this cycle than to punish individual corrupt acts. Another level of complexity with respect to breaking the cycle of normalcy is the fact that the general population becomes complicit in corruption either by apathy or by becoming equally corrupt themselves greatly challenging the rule of law both in its implementation and enforcement. Thus the state of corruption in Nigeria is decidedly the norm and it is against this background that we examine anti-corruption measures in Nigeria. Anti-Corruption Measures in Nigeria Thus far it has been established that corruption is undoubtedly at a crisis stage in Nigeria and has persisted for quite some time now. Present and observable in virtually every administrative sector of Nigeria’s government37, and though a number of anti-corruption laws exist, corruption continues to such an extent that it has been described as “rampant”.38 Corruption is said to have existed in Nigeria since the colonial period and has steadfastly grown and flourished over the years.39 In this part of the paper, we examine the extent to which Nigeria has actively attempted to combat corruption. The Political and Legislative Commitment to Combat Corruption When taking office for a second term in 1996, President Olusegun Obasanjo stated that his administration was committed to eradicating corruption. Pursuant to this pledge, during President Obasanjo’s second term, the Corrupt Practices and Other Related Offences Act 2000 was enacted which provided the authority for establishing the Independent Corrupt Practices and Other Related Offences commission. By 2004, the Nigerian Legislature passed the Economic and Financial Crimes Commission Act which established the Economic and Financial Crimes Commission. During President Obasanjo’s tenure other anti-corruption measures were implemented including the creation of the monitoring programmes and policies and “a Due Process Office”.40 President Obasanjo’s efforts to combat corruption in Nigeria are consistent with the aims and objectives of the Constitution of Nigeria 1999.41 The Constitution of Nigeria states that one of its political aims and objectives it the abrogation of “all corrupt practices and abuse of power.”42 The mere fact that an anti-corruption agenda is stated in the country’s Constitution speaks to the widespread corruption experienced in Nigeria, at least up the point where the drafters of the Constitution penned the document and legislators passed it, making it binding law. Even after making a commitment to combat corruption as manifested by the Constitution, corruption persists and has become seemingly normal in Nigeria’s political and social institutions. This speaks to the difficulties Nigeria has experienced in breaking this cycle of normality is more difficult than penalising individual corrupt acts. The Corrupt Practices and Other Related Offences Act 2000 was enacted as a means of creating an effective anti-corruption environment. The 2000 Act was also promulgated in response to requirements by the UN Global Programme on Corruption.43 On its face, the 2000 Act appears to take a strong anti-corruption stance. It creates criminal offences out of both actively and passively accepting bribes on the part of public officials.44 Defining and Punishing Corruption Offences Section 8 of the 2000 Act covers passive corruption and in this regard an individual who “corruptly asks for, receives, or obtains any property or benefit of any kind for himself or for any other persons” or attempts to or agrees to receive property or benefits for himself or another, in connection with government functioning, is guilty of an offence of “official corruption” and faces a 7 year custodial sentence.45 The word “corruptly” is not defined by the 2000 Act. However, corruption is defined by the 200 Act as “bribery, fraud and other related offences”.46 It therefore appears that criminal corruption is broadly defined and contemplates any dishonest or unlawful act which results in a private benefit. Criminal corruption also applies to individuals who are not actively involved in the corrupt act, but nevertheless are complicit by reason of their passive roles in terms of receiving private benefits from those acts. Section 8 of the 2000 Act therefore attempts to discourage or deter passive participation in corrupt acts and to take a strong stance against corruption. Sections 9 and 10 of the 2000 Act deals expressly with active corruption. Section 9 criminalizes any act on the part of a person or entity that offers or procures a corrupt act from a public official. Such a person is guilty of an offence of official corruption and liable to a 7 year custodial sentence.47 Section 10 creates an offence in the event an individual who asks “for, receives or obtains property or benefits of any kind for himself” or another, “or agrees or attempts to receive or obtain any property or benefit...for himself” or another in the “discharge of his officials duties or in relation to any” government functioning is guilty of official corruption and faces a 7 year custodial sentence.48 It is also important to note that corruption can be committed by both act and omission. To this end Section 10 specifically states that a corrupt act is committed in relation to the receipt of benefits for: “...doing or omitting to do an act which is part of the functions, affairs or business of a Government department”.49 Taking the anti-corruption regime a step farther, Section 17 also criminalizes private sector corruption in terms of agent/principle or employee/employer relationship. In this regard, an individual is guilty of corruption if he or she: Corruptly accepts, obtains or agrees to accept or obtain or attempts to obtain from any person for himself or for any other person, any gift or consideration as an inducement or reward for doing, forbearing to do, or for having done, or forbone to do, any act or thing.50 A person found guilty of a Section 17 offence can be imprisoned for up to five years.51 The Prosecutorial Framework Nigeria’s Criminal Code also contains a number of Corruption and Abuse of Office offences. However, these offences are virtually identical to the corruption offences created by the 2000 Act.52 Guided by the corruption offences, the Corrupt Practices and Other Related Offences Commission is charged with the responsibility of investigating and prosecuting any case where there are reasonable grounds suspect that corrupt acts have been committed or might be committed.53 The Commission is also responsible for advising and supervising the implementation of anti-corruption frameworks within government departments and to heighten public awareness of “bribery, corruption and related offences” and to “enlist and foster public support in combating corruption.”54 The Economic and Financial Crimes Commission (Establishment) Act 2004 adds yet another instrument for combating corruption in Nigeria. By virtue of the 2004 Act, the Economic and Financial Crimes Commission was established. The 2004 Commission has the authority to investigate where corporations or individuals have committed financial crimes and the Legal and Prosecution Unit of the 2004 Commission prosecutes any established offences.55 Concluding Observations Arguably, Nigeria has a very strong anti-corruption regime. On paper, virtually any act for private gain by a public official is punishable by imprisonment. In addition, public officials found guilty of corruption are required to not only forfeit the property obtained via corrupt acts, but shall also pay a fine “five times the sum or value of the gratification” or “ten thousand Naira, whichever is the higher.”56 In light of the strong anti-corruption regime in Nigeria and its decidedly punitive nature, it is surprising that corruption is so widespread in Nigeria and this obviously requires a closer examination of the social-political environment in which the anti-corruption Commissions and laws operate. The Ineffectiveness of Anti-Corruption Measures in Nigeria A major obstacle to combating public or official corruption in Nigeria is found in Section 308 of Nigeria’s Constitution. Section 308 deals with immunity and provides that: No civil of criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.57 In order to bring corruption proceedings against a public official the individual will have to be removed from office under Section 188 of the Constitution.58 Obviously, this would necessarily require the cooperation of other public officers and one would have to assume that they are all willing to cooperate. However, if other public officers are also corrupt, the cycle of normalcy is complete and the will to combat corruption is defeated. In order to effectively combat corruption it is necessary for democratic institutions with popular participation to have the ability to monitor and hold accountable those who function as head of state and have access to the country’s treasury.59 In countries where corruption in strong, the first necessary step is to improve the rule of law. Institutions in terms of “participation and accountability” must also be improved and the level of “government intervention” must also be restrained.60 However, strengthening the rule of law, democratic participating and accountability and limiting government intervention is only one part of the anti-corruption process. It is also necessary to address the social and economic problems that give rise to and perpetuate corruption. Economic development in which civil society and citizens are empowered is also necessary. Social development is also required so that members of society take the position that their votes are not for sale, are against paying bribes, and are willing to report suspected cases of corruption.61 Nigeria has taken the initial steps toward strengthening the rule of law by the implementation of laws that prescribe and criminalize corruption. However, this alone is not enough since government institutions charged with the responsibility of enforcing the rule of law must be free of corruption to begin with. As the United Nations informs, strengthening the rule of law is largely left to the judiciary. However: If the judiciary is itself corrupt, the problem is compounded and the public at large is with the rule of law.62 The rule of law is further compromised when the system of enforcement is either corrupt or powerless to enforce the law. As the United Nations argues, regardless of how good or strong the anti-corruption laws are, these laws are valueless if they are not enforced. Moreover, even if the judiciary is not corrupt, they have very little impact on the value of anti-corruption cases if these cases are rarely or never brought before the judiciary. If the judiciary is corrupt, the best investigative and prosecutorial efforts are likewise valueless.63 The findings of this research work strongly suggests that corruption is not only widespread but present in virtually all factions of Nigeria’s government and society. It can therefore be concluded that even with a relatively strong anti-corruption law, anti-corruption efforts are compromised by the extent to which corruption prevails in political and social institutions since the deep roots of corruption prevent effective investigation, prosecution and enforcement of anti-corruption laws. Widespread corruption appears to be an obstacle to the effectiveness of for anti-corruption efforts in Nigeria. Corruption has created an economic and social climate in which elite political leaders are obtaining personal wealth from public funds and public projects while a vast majority of Nigerians live in “abject poverty”.64 While civil society has emerged to challenge corruption, they have lacked financial and public support and have little or no access to information and remains highly limited in its efforts to fight corruption.65 Moreover, the complacency or apathy of Nigeria’s population puts very little pressure on the government to make the necessary social and economic reforms for effective anti-corruption measures. Perhaps the greatest obstacle to Nigeria’s anti-corruption efforts is the immunity accorded political officials by the Constitution. When government officials can be corrupt with immunity, there is little that can be done unless government officials and political institutions are serious about removing corrupt officials from office under the Constitution. However, as previously noted, when corruption is so widespread so that it is decidedly normal, the political and legal will to remove corrupt officials from office and to prosecute those officials is entirely problematic. Conclusion In Nigeria, corruption has become so endemic that it is normal from the perspective of all members of society and more especially for those who hold public offices. This cycle of normalcy has created an environment where the political and social will to fight corruption has been eroded. Despite the promulgation of strong anti-corruption laws and programmes, this cycle of normality has become more difficult to break than penalising individual corrupt acts. For the most part, the normality of corruption has created an atmosphere in which Nigerians neither demand nor expect compliance with the rule of law. Corruption is so widespread and as such so normal in Nigeria that it is not perceived as a national problem which should be combatted to ensure economic and social reform. There is a perception that economic and social progress is achieved via corruption. Essentially, until corruption is tempered at the top, public tolerance of corruption will remain unabated. Unfortunately, corruption is the bane of Nigeria’s economic and social progress and this underdevelopment has functioned to safeguard corruption. In other words, corruption is the cause of underdevelopment and in turn, underdevelopment gives life to corruption in Nigeria. Thus an endless cycle of corruption and underdevelopment persists in Nigeria and this cycle in and of itself has created a perception that corruption is a normal defence to the social and economic hardships. In the final analysis, corruption is institutionalized in Nigeria and as such has become virtually impossible to combat. 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