Beating the Corruption Enterprise: A Policy Approach to Criminal Justice in Nigeria
In this article, Olasupo Shashore critically examines what he refers to as the"ecosystem" of crime, in relation to corruption, and identifies four main elements within the cycle of corruption, that is, opportunity, motive, benefit and sanction, which he b
Perpetrators of criminal activities defeat the machinery of justice, enabled by their understanding of the limited capacity of state agents, borders and institutions to foil 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 crimes, a host of factors driving the volition of the offender-tobe. 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. As objectionable as corrupt practices are, the drive to curb and eliminate them necessarily requires the same strategic, deliberate and critical thinking employed by perpetrators. ‘Intelligent guess work’ by the state, has proved to be no revolutionary or effective solution to corrupt practices.
To understand the ecosystem of crime, one must be aware of the complexity, complexion and context of human behaviour to the forces at play, and the levers available to control and contain departure from 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 'criminal enterprise' or to treat it like a monophonic whole. Nevertheless, it would be a lapse not to critically examine certain salient features that are instructive in developing a national plan of action against corruption.
Opportunity, motive, benefit and sanction – in that order - are all stations in the stream flow of corrupt practices that the state should recognise. In examining the stream, the challenges and failings of our current system of justice, become more apparent. By failing to recognise the chain of criminal activity and use these insights to inform the backdrop and policy underpin for our planning, the challenge will continue unabated.
Opportunity
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 aimed at ensuring that Nigeria's data is as accessible, discoverable and 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
engagements, supports research and facilitates the development of innovative solutions to local issues. We have a long way to go.
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, the arbitrary withholding of information creates the need to ‘pay’. The market for public information, is further fragmented, when public officials enjoy impunity and create fearful uncertainty in the minds of the tax-paying public. These ‘successful’ transactions give greater confidence to both the public official and the patron of his services. Confidence, then engenders infinite fertility of more 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 economist 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 unguarded monopoly and discretion over certain powers, is precarious enough, without being compounded with the absence of a system that ensures the accountability of these donees.
It is then easy to see that, the present attitude of public office to access to information for tax payers, is inadvertently feeding the corrupt practices against which the State passionately advocates. Opening up government process and procedure to tax payers, cannot be over emphasised in the advocacy against corruption. Such a move would stir Nigerians to embrace policy and truly live by the non-lip-service 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 both a practical and legal imperative for the government to address openness of government in all its ramifications, to curtail the opportunities that enable corruption.
Motive
Two types of corruption underscore motive. These are 'corruption of greed' and 'corruption of need'. This section focuses on corruption of need leaving for another day, 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, culture, greed, a weak legal system, e.t.c. The word ‘motive’, however, suggests reason, purpose, or rationale. It does NOT suggest a 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.
While never apologising for corruption, 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 its strongest motive of ‘lack’ ordinarily linked to poverty. Poverty, denotes serious lack of the means for proper existence while absolute poverty refers to the lack of means necessary to meet basic needs such as food, clothing and shelter. In 2016, Ayo Sogunro astutely defined corruption of need, as the aggregate negative consequences of inequalities in a society; 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. His definition is not too far from the truth, because corruption is a resultant effect of the government's failure 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. It's 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 not unconnected to the distinction in justiciable and unjusticiable 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.
Sadly, the provisions are said to be non-justiciable by the provision of Section 6 (6) (c) of the same constitution, 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 it 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 a path of mobility 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 prospect. 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 judgement in the case of LEDAP v Federal Ministry of Education & AGF 3 CLRN (2017) per Tsoho J, where the court declared free universal education for all Nigerians an enforceable right, has made enforceable, the provision of Section 18 (3) of the Constitution. The court in relying on the Supreme Court decision in Attorney-General of Ondo State & Ors v Attorney-General of the Federation 2002 9 NWLR 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 opportunity to cheat the law. They may do so, in the belief that, the system is more beneficial when disobeyed than complied with.
States should 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(the usual practice is to get to step 3 before proceeding to the next level); while a Grade 17 (step 1) subnational (senior) government (officer in Southern Nigeria earns about N347,000 with a salary increase of N13,000 across 9 promotional steps (see salary structure of a State Civil/Public Service in Southern Nigeria (effective January 1st, 2011)).
The salary structure of sub-national government officials in Northern Nigeria 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 (see Salary Structure of a State Civil/Public Service in Northern Nigeria (effective January 1st, 2011)).
Again, without apologising for criminal conduct, it is easy to see how the current state of affairs motivate crime. 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. Junior officers are therefore, at the mercy of superiors as they are left with little or 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 organisation's. 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 the 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 somehow decides that the benefit outweighs the risk or weight of sanction. The enterprise continues to proliferate while we fail – at least in the public sector- to address the abysmal remuneration of the clear majority of public workers.
Recall the trend created by AG Ondo state v AG Federation (2002) ibid, 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 3 CLRN (2017) ibid should indicate to our legislature that enacting an Affordable Health Care Act or a New Realistic Minimum Wage Act will 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 so do, 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 institutionalised 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) saddled with a mission to rid Nigeria of corruption, through lawful enforcement and preventive measures, and also inaugurated under the then President Obasanjo; the Code of Conduct Bureau (CCB), a pioneer anti-corruption agency set up in 1989 by the Federal Government of Nigeria, 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 efforts include setting up of probe panels, commission of enquiry and tribunal (e.g. Failed Bank Tribunal) to try corrupt individuals. Laws such as Money Laundering Act 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 back probe panels and tribunals.
It has even been suggested in some quarters that, the death penalty be made applicable to corruption convicts in Nigeria. As appealing as it may seem to many citizens in Nigeria, death penalty from all observable evidence, has not succeeded in deterring crime, the continued occurrence of armed robbery is a case in point. Presently, there are over 1000 prisoners on death row in Nigeria. Other than the three death-row inmates executed in Edo State last year (since 2013), the executive is usually wary of signing death warrants, which gives credence to the fact that, death penalty does more harm than good to the society.
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. Focusing on sanction without addressing the other upstream etiology of criminal enterprises, such as corruption, is an ineffective crime mitigation strategy. To deal a fatal blow to corrupt machinations, the State must pay attention to the entire ecosystem and address with strong measures, the opportunity, motive and benefit of criminal activity.
Olasupo Shashore, SAN, former Attorney-General, Lagos State, Partner, ALP (Africa Law Practice), Lagos