A CRITICAL APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR ANTI CORRUPTION CRUSADE IN NIGERIA
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A CRITICAL
APPRAISAL OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR ANTI CORRUPTION CRUSADE
IN NIGERIA
ABSTRACT
This dissertation gives an appraisal of the
legal regime for combating corrupt practices in the public service of the
federation. The objectives of the study are to examine the legal regime for
combating corrupt practices in the public service of the Federation. Highlight
the merits, demerits, challenges and to proffer some recommendations.
The main
problem with the legal regime to combat corruption in the public service is
lack of focus on the issues that cause corruption therefore result in failure
to apply the appropriate remedies to tackle corruption. Another key challenge
affecting the fight against corruption in Nigeria is the location of anti-corruption
functions within multiple and operationally diverse institutions, which despite
their closely related and even overlapping mandates have limited interface and
cooperation and seldom coordinate policies and operations. Other factors
affecting the fight against corruption are lack of funding, and bureaucracy.
Furthermore,
the immunity clause under section 308 of the Constitution of the Federal
Republic of Nigeria precluding prosecution against some members of the public,
the system to check those in authority is ineffective to supervise and be a
motivating factor for individuals to be honest in their work and the
constitutional safeguard for presidential pardon in insufficient to restrict
the abuse of the power by the president.
Despite all
efforts, Nigeria continues to fall short of the standards and requirements of
an effective anti-corruption regime as embodied in regional and global
anti-corruption conventions.
It is
observed that the legal regime to fight corruption have failed to curb corruption
in the public sector. Unfortunately, the trend is that corruption is
exacerbating with the passage of time.
CHAPTHER ONE
GENERAL
INTRODUCTION
1.1
INTRODUCTION
Nigeria
despite its oil wealth has one of the largest population of poor people on the
African continent.1 Corruption is however the major cause of poverty in
Nigeria. Despite more than a decade of civilian democratic rule, Nigeria still
faces huge governance and development challenges. Transparency International
ranked Nigeria 136 with a score of 26 on its 2015 corruption perception index.2
Despite efforts made by the government for the past decade to provide a better
legal and institutional framework to curb corrupt practices in the public
service, there are still major issues with corruption.
Giving the
way the practice of corruption has become generally accepted in Nigeria, the
research may think it is because there are no laws and institutions to curb
corruption. This is not the case. In fact there are several laws that proscribe
corruption and institutions to curb corruption in the public sector.
The Penal
and Criminal Codes both contain anti-corruption provisions. Accordingly, the
law prohibit demanding and receiving of bribes by public officials. The law
also penalise anyone who either gives or offers bribe to public officers. The
law also prohibit the activities of agents, relatives and other close
associates
of public officers to demand or receive gratification either for them or any
other person.
The
Constitution of the Federal Republic of Nigeria, 1999 provides for the
establishment of the Code of Conduct Bureau.3 The Bureau was designed to
monitor compliance with anti-corruption regulations in the code of conduct for
public officers. In addition to the Nigerian Constitution, there are other
laws, regulations, and initiatives that have been enacted or implemented to
fight corruption. The Corrupt Practices and Other Related Offences Act led to
the establishing of the Independent Corrupt Practices Commission (ICPC). The
Act prohibits corruption, corrupt practices and corrupt enrichments and aims at
the enthronement of probity, accountability, transparency, honesty, integrity
and credibility in public life. The Act also establishes an Independent Corrupt
Practices and Other Related Offences Commission charged with the responsibility
of investigating and prosecuting offender under the Act.
Also, Due
Process was established to commence contract award review, oversight and
certification process.4 It is a mechanism that certifies for public funding
only those projects that have passed the test of proper-implementation
packaging. Those projects most comply with the stringent requirements of
international competitive bid approach in award process.
Furthermore,
there is the transparency in privatisation and market liberalisation process.
The aim of which is to comply with the Extractive Industries Transparency
Initiatives (EITI) and it involves the implementation of transparency in the
privatisation and liberalisation of key economic sectors. Also, there is the
move for transparency in the oil and gas sector, pursuant to this mandate the
government will allow for checks and balances by providing information about
its actions, receipts and expenditures in the oil sector.
Nigeria has
made host of reforms and put into place a host of measures designed to help
fight corruption in the country. But there appears to be a long way before it
realise the benefits of such reforms
1.2
STATEMENT OF PROBLEM
The
persistent high level of corruption in Nigeria in the public service was due to
lack of enforcement legal regime. The legal regime to combat corrupt practices
in the public service of the federation has failed to prevent corrupt
practices. The introduction of anti corruption functions within multiple legal
and diverse institutions was meant to provide an effective and efficient legal
regime to combat corruption in the public service. The issue for consideration
now is whether the multiple legal and diverse institutions have sufficiently
covered issues to tackle corruption in the public service.
In view of
the forgoing this research has formulated the following research questions:
a) Whether the legal regime to combat corruption
in the public service provides effective tools that stems corruption.
b) Whether there are limitations in the legal
regime to combat corruption in the public service that need to be reviewed and
improved upon in order to effectively combat corruption.
c) Whether there has been an improvement in
combating corruption in the public service with the introduction of anti
corruption functions within multiple legal and diverse institutions.
1.3
JUSTIFICATION
This
dissertation is relevant in view of the fact that it will educate the public on
the legal regime for combating corrupt practices in public service of the
Federation. The dissertation will also look at the legal and institutional
requirements to find out the missing link that has prevented the curbing of
corrupt practices in the public service. The effectiveness of the laws and the
institutions and their limitations will also be considered.
1.4
OBJECTIVES OF THE STUDY
The
objectives are:
i) To
examine the legal and institutional framework for anti corruption crusade in
Nigeria.
ii) To highlight the merits and demerits.
iii) To highlight challenges and to proffer some
recommendations
1.5 SCOPE
The proposed
research will focus on legal and institutional framework for anti corruption
framework in Nigeria. The research will focus on examining the multiple legal
and diverse institutions to combat corruption in the public service in Nigeria.
However, the limitations of the research are lack of funding and accessibility
to the institutions for curbing corruption.
1.6
METHODOLOGY
This
research is intended to be carried out by library based research by consulting
all relevant materials which include Laws of the Federation of Nigeria,
judicial decisions and other materials such as text books and journals.
1.7
LITRETURE REVIEW
Oko, O5.
Examined how Nigeria can use legal rules, economic reforms and changes in
attitude to craft a more effective response to corruption. He argues
that
democracy, promulgation of new anti-corruption law, and the establishment of an
independent anticorruption agency unaccompanied by wholesale changes in
attitude, social practices, and economic reform will not end corruption in a
country already tottering under the burden of ethnic strife, lawlessness, and
economic instability.
However,
this dissertation will examine other requirements to fight corruption such as
the EFCC and the Due Process which the author under review did not examine.
Ogbu, O.N.6,
critically examined the legal and institutional framework for combating
corruption in Nigeria before 1999, which he observed has some obvious defects.
The author observed that the legal provisions are so technical and complex that
in many cases persons who ought to have been found guilty were set free.
The author
finally submits that the battle against corruption in Nigeria can only succeed
when it is institutionalised and when there is demonstrated political will to
fight corruption. Also, this dissertation will examine the Extractive
Industries Transparency Initiatives and the due process as means in fighting
corruption which the author failed to do.
Shola, J.O.7
engages the crucial question of to what extent has the new war against
corruption has succeeded in addressing the scourge. The author also submits
that while the legal and institutional anchorages of the war offer a good point
of departure, they remain grossly inadequate. The author further stated that
this largely explains why the war has been underproductive and caught in a
deepening crisis of legitimacy.
The author
furthermore submitted that what is required is the nourishing and
re-envisioning of such requirements, coupled with strong political will, to
challenge the structure of power that currently generate and sustain the system
and establish a truly democratic development state. The author also failed to
examine the Extractive Industries Transparency Initiatives as a requirement to
tackle corruption which this thesis will do.
Ijeoma,I.O.8
examined Nigerian anti-corruption initiatives. The author examined the
initiatives which include more accountability in the public sector, enforcement
of existing anti-corruption laws, establishment of a Public Procurement
Commission, the implementation of the due process mechanism the publication of
information and requirement of transparency in the petroleum industry, the
requirement of the market liberalisation process, and finally the requirement
of transparency in the political process.
The author
observed that it seems that a lot has been put in place to fight corruption but
the most sweeping of them all is the Extractive Industries Transparency
Initiatives.
The author
concluded that even though Nigeria has taken certain steps in the right
direction towards curbing corruption, more is still to be done. The author only
briefly discussed the anti corruption initiatives such as the due process
mechanism. This dissertation will give a more detailed examination of the
initiatives such as examining the Extractive Industries Transparency
Initiatives in light of the NEITI Act, 2007.
Nlerum S.
Okogbule9, examined the adequacy or otherwise of the existing legal and
institutional mechanisms for combating corruption, and found that the earlier
statuary enactments have proved ineffective in combating corruption in
contemporary Nigeria, Hence the enactment of the Corrupt and Practices and
other Related Offences Act, 2000 and the Economic and Financial Crimes
Commission Act, 2004, with the objective of dealing with various aspects of
corruption.
Furthermore,
he also found that for the process of fighting corruption to be effective,
legislative measure to tackle corruption must take cognizance of the
multifarious nature of the menace coupled with the requisite political will to
enforce the provisions of such statutory enactments. Finally, he demonstrates
the great
benefit of the use of additional legislative measures in tackling corruption.
He suggests the strengthening of these mechanisms and a re-orientation of
social values as the best strategy for dealing with the corruption virus in the
country. The author also failed to examine the due process mechanism and the
Extractive Industries Transparency Initiatives which this dissertation will do.
Moreover,
Ignatius Adeh10, examined the corruption from an environmental perspective, and
further restricts his examination within the Niger Delta region. However, he
still went on to discuss the loopholes in the system and observed that despite
the wide range regulatory provisions designed to checkmate the conducts of
public officials, there is still growing corruption in the public sector.
Furthermore, John Hatchard11, examined legal approaches in combating
corruption. He demonstrates that Nigeria being a signatory of the African Union
Convention on Preventing and Combating Corruption and the United Nations
Convention against Corruption, in practice the country continues to experience
problems of bad governance and the looting of state asset. He also explores how
the art of persuasion can help develop the necessary political will through
which to address these challenges. The author failed to examine the Extractive
Industries Transparency Initiatives.
Enweremadu,
D. U.12, examined the struggle against corruption in Nigeria. The author
examined the failure of the ICPC to stem the tide of corruption in Nigeria
since its inception. The author contends that, except the putting in place of
such institutions are accompanied by a radical change in social values and
practices beginning from the top, corruption may likely remain a major problem
in Nigeria.
Babatunde,
I.O.13, examined the impact of national legislations on corruption control in
Nigeria. He observed that despite the magnitude of available anti-corruption
legislation, corruption and abuse of power have been in the increase in
Nigeria. He also observed that the major problems of the agencies are that they
do not have enough capacity, independence and resources to adequately perform
their functions. The author only briefly discussed anti corruption legislations
and institutions.
Abdullahi
Y.S., examined the issue of illicit enrichment involving political exposed
persons, as well as the legal framework for asset recovery in Nigeria. He
observed that strengthening prosecutorial and judicial capacity to achieving
conviction and record successful asset recovery constitute an area of priority.
He also observed that where bureaucracy is stronger than institutions for
maintaining accountability, equity and justice, such a situation would
facilitate
corruption.
However, the author restricted his examination to the Economic and Financial
Crimes Commission.14
Emmanuel,
E.O., examined combating corruption in Nigeria by discussion the Economic and
Financial Crimes Commission. He examined the activities of the Economic and
Financial Crimes Commission and notes that corruption occurs primarily when
there is a failure of established institutions and lack of capacity by these
institutions to manage frameworks of social, judicial, political and economic
check and balances.15
Adeleke,
F.A.R. and Olayanju, O.F.16, examined the role of the judiciary in combating
corruption. They discussed the factors that are necessary to assist in building
an effective, vibrant and corruption free judiciary. However, they observed
that the Nigerian judiciary has failed to live up to its responsibility in its
role of combating corruption in the country and is even itself accused of
corruption.
Paul,
D.O.17, the socio-legal analysis of Nigeria‟s Corrupt Practices and Other
Related Offences Act, 2000. He examined the social environment which corruption
operates and points out that in the past the environment was such that
anti-corruption measures were bound to fail, but concluded in optimistic vein
that the
return to civilian rule is likely to have an effect in the fight against
corruption.
Abubakar,
K.A.18, examined the long-term legal and extra-legal recipe for Nigeria. He
observed that the dilemma over cogent policies against corruption is borne out
of the reality of the incessant military rules in Nigeria. He also observed
that military rule lacks the basic accessories for checking
administrative/executive indiscipline, lawlessness and malpractices which are
usually the root of corruption in society. The author failed to examine the
Extractive Industries Transparency Initiatives.
Olakunle,
O.O.19, examined the extra-territorial scope of the anti-corruption legislation
in Nigeria. He examined the Corrupt Practices and Other Related Offences Act,
2000. Central to the article‟s focus, is a historic examination of Nigeria‟s
institutionalised corruption through the relationships between corrupt private
enterprises and public officers.
Furthermore,
the thematic compilation of relevant information submitted by Nigeria to the
United Nations Convention against Corruption only captured the specific mandates
of some of the agencies that combat corruption. However, the report did not
capture the due process.20
Furthermore,
report on corruption risk assessment in the Nigerian port sector puts forward
specific recommendations for actions to eliminate corruption in the Nigerian
port sector. The report which was conducted by United Nations Development
Programme and the Maritime Anti-Corruption Network, identified some challenges
which include weak internal ethics in port agencies, an under developed system
for investigating complaints of demands for bribes, and no effective system for
handling grievances and protecting whistle blowers. However, the report was
restricted to the Nigerian port sector.21
However,
even though the efforts of the above authors are to be applauded, but they seem
to focus on issues of the Independent Corrupt Practices and Other Related
Offences Commission and the Economic and Financial Crimes Commission.
Furthermore, where they discuss other anti corruption initiatives they tend to highlight
the issues therein without critical analysing them.
This however
gives room for issues such as the extractive industries transparency
initiatives and the due process mechanism to be critically analysed.
1.8
ORGANIZATIONAL LAYOUT
The
dissertation is divided into five chapters. Chapter one provides the general
background of the study highlighting the introduction of the topic, statement
of
the problem,
justification, objectives of the study, scope, methodology, literature review
and the organizational layout.
Chapter two
examines conceptual analysis of terms. Under it, an attempt to give the meaning
of corruption is made. Furthermore, forms of corruption, other forms of
corruption, causes and effects of corruption will be examined.
Chapter three
examines legal framework for combating corruption in Nigeria. Under it, the
Penal and Criminal Codes will be briefly discussed. Also, Auditor General of
the Federation, Public Procurement Act and Nigeria Extractive Industries
Transparency Initiatives and presidential pardon will be discussed so as to
show the loopholes that prevents such legal framework from curbing corruption
in the public service.
Chapter four
examines the institutional framework for combating corruption in Nigeria. Under
it, judiciary, ICPC, EFCC and the Nigerian Police and Public Complaints
Commission will be discussed so as to show the effectiveness and otherwise of
such institutions to curb corruption.
Chapter five
provides the summary, conclusion, finding of the study, and recommendations to
address the issues of corruption in the public service.
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