Nigeria Lawyer, 16 July 2021: Our Role In The Effective Of Nigeria’s Anti – Corruption Laws By Layi Babatunde SAN.
“Your laws are ineffective, when declared. Why? Because no system of control will work as long as most of those administering the law against an evil have more than a finger dipped into it themselves.”
Han Suyin, Chinese physician and writer Destination Chungking (1942)
Late Alao Aka Bashorun, Legal prodigy and president (1987-1989) of the Nigerian Bar Association (NBA) deserves every accolade and every avenue designed to celebrate his times and momory.
Alao Aka Bashorun went to beyond body language in standing tall against corruption He fought against impunity and Corruption which the military indulged in almost as of right. His Heart was with the masses of our people epitomizing the call of one of our founding fathers on us, late Christopher Alexandar Sapara Williams, who was reputed to have declared:
“The Legal Practitioner lives for the direction of his people and the advancement of the cause of his country”
Alao Aka Bashorun, our Legal icon not only did just that, he died for it. His greatest weapon, was his moral authority which made the Bar respect his views and honoured his leadership through co-operation.
The NBA secretariat on Adeola Hopewell rightly named after him, was built under his watch on contractor – Finance basis, thereby solving a long standing challenge to the Bar at minimal cost to it.
I therefore pay Tribute to the memory of this patriot, by rendering this poem entitled Remembrance Rock by Carl Sandburs; which seek to lead us back to our origins:
“When we say a patriot is one who loves one’s country” ran the voice of Justice Windom “What kind of love do we mean? A love we can throw on a scale and see how much it weighs? A love we can take apart and see how it ticks? A love where with a yard stick we record how long, high, wide it is? Or is a patriot’s love of country a thing invisible, a quality, a human shade and breath, beyond all reckoning and measurement? These are questions. They are as old as the time of man. And the answer to this, we know in part. For we know when a nation goes down and never comes back when a society or a civilization perishes, one condition may always be found. They forgot where they came from. They lost sight of what brought them along. The hard beginnings were forgotten and the struggles farther along.
They became satisfied with themselves. Unity and common understanding there had been, enough to overcome rot and dissolution, enough to break through their obstacles. But the mockers came. And the deniers were heard. And vision and hope faded. And the custom of greeting became “What’s the use?” And men whose forefathers would go anywhere, holding nothing impossible in the genius of man, joined the mockers and the deniers. They lost sight of what brought them along. You may bury the bones of men and after dig them up to find they have mouldered into a thin white ash that crumbles in your fingers. But their ideas won. Their visions came through. They ought not to be forgotten – the dead who held in their clenched hands that which became the heritage of us the living”.
Being called upon to deliver a paper, at this event, as part of the activities marking the NBA Ikeja Branch 2021 Law Week activities is both an honour and a challenge given the Topic I have been asked to speak upon. The issue of corruption is as old as our country. We have never being short of seminars symposia and several forums of discussion on the debilitating subject of corruption and the incalculable harm it has done and continues to do to our country. Indeed, when the military first intervened in our country’s political affairs, the consequences which we still suffer from, their justification for the coup was captured thus:
“Our enemies are the political profiteers, the swindlers, the men in high and low places that seek bribes and demand 10 percent; those that seek to keep the country divided permanently so that they can remain in office as ministers or VIPs at least, the tribalists, the nepotists, those that make the country look big for nothing before international circles, those that have corrupted our society and put the Nigerian political calendar back by their words and deeds.
2.2.2 Indeed, one of the earliest attempts to checkmate corruption through Legislation in Nigeria is the Northern Nigeria Customary Presents order 1955. This is the precursor to S. 6(3) of the Code of Conduct for public officers contained in the First Schedule to the 1999 Constitution (as altered). The Section provides:
6. (1) A public officer shall not ask for or accept property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties.
(3) A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom:
Provided that any gift or donation to a public officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the public officer, and accordingly, the mere acceptance or receipt of any such gift shall not be treated as a contravention of this provision.
So its obvious that the battle against corruption has been long drawn and in some cases bloody in Nigeria.
2.2.3 Corruption Defined:
The Home page of ICPC contains this troubling reminder:
“Corruption in Nigeria undermines democratic institutions, retards economic development and contributes to government instability. Corruption attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law, and creating bureaucratic quagmires whose only reason for existence is the soliciting of bribes.”
According to the authors of “Corruption and misuse of public office”:
The word ‘corruption’ is derived from the Latin word ‘corruptus’ meaning to break. Its derivation emphasizes the destructive effect of corruption on the fabric of society and the fact that its popular meaning encompasses all those situations where agents and public officers break the confidence entrusted to them.
Chijioke Kelechi Iwuamadi offers this explanation on corruption and its debilitating effect
“corruption has a significant negative impact on economic growth in Nigeria; it undermines the prospects for economic investment. By offering bribes to secure business, national and international companies undercut legitimate economic competition, distort economic growth and reinforce inequalities. Although the business (and the corrupt official) may gain in the short run, the bribe payment shifts money away from potentially productive investments. These noneconomic transaction costs keep the level of enterprise development low relative to those enterprises that are able to invest in growing their business. To generate national economic growth, businesses must use their capital resources productively. When capital is drawn away into non-economic transactions, this negatively affects enterprise growth as well as the marketplace in general. Corruption distorts growth incentives also by forcing out potentially better producers of goods or services. Since the majority of businesses in Nigeria are small and medium size enterprises (SMEs) who employ more than 90% of the workforce”. It is therefore not out of place to conclude that the large population of our unemployed, particularly the youths bears a direct correlation to our endemic corruption.
2.2.4 Legislations on corruption
1) The Economic and Financial Crimes Commission (Establishment) Act, 2004.
2) The Constitution of the Federal Republic of Nigeria, 1999.
3) Independent Corrupt Practices and other Related Offences Act.
4) Money Laundering Act 2004.
5) Money Laundering (Prohibition) Amendment Act, 2012.
6) Code of Conduct Act.
7) Nigerian Extractive Industries Transparency Initiative Act.
8) Freedom of Information Act, 2011.
9) Fiscal Responsibilities Act, 2010.
10) Penal Code, Laws of the Federation of Nigeria 2004.
11) Criminal Code, Laws of the Federation of Nigeria 2004.
12) Administration of Criminal Justice Act, 2015.
13) Public Procurement Act, 2007.
14) Advance Fee Fraud and other related offences Act, 1995.
15) Failed Banks (Recovery of debts) and Financial malpractices in Banks Act
16) Miscellaneous offences Act.
A brief comment on some of these Legislations, relative to the role of the Legal Practitioner will suffice. The most prominent of these legislations; are the Economic and Financial Crimes Commission Establishment Act and the Corrupt Practices and Related Offences Act. We will focus more on these two.
2.2.5 Economic and Financial Crime Commission (Establishment Act, 2004)
The EFCC Act was first enacted in 2002, re-enacted in 2004. The Bill for the 2004 version was passed into law on the 23rd March, 2004 by both the House of Representatives and the Senate. The then president, Chief Olusegun Obasanjo assented to the bill on the 4th day of June 2004, thereby culminating into the enactment of the Bill into an Act of the national Assembly. It was consolidated along with other enactments in the 2004 and 2010 editions of the Laws of Nigeria.
The Act has 47 (forty-seven) sections, divided into seven parts. The seven parts covers the following topics:
1) The Establishment of the Economic and Financial Crimes Commission Etc., (sections 1-5);
2) Functions of the Commission (Sections 6-7);
3) Staff of the Commission, (sections 8-13);
4) Offences (Sections 14-27);
5) Forfeiture of Assets of Persons Arrested under this Act (Sections 27-34);
6) Financial Provisions (Sections 35-37); and
7) Miscellaneous provisions (Sections 38-47).
The Act provides for the establishment of the economic and financial crimes commission charged with the responsibility for the enforcement of all economic and financial crimes laws in Nigeria, among others. Section 7(2) vests the commission with the power to coordinate the enforcement of the following legislation:
a) Money Laundering Act, 1995
b) Advance Fee Fraud and other related offences Act, 1995
c) Failed Banks (Recovery of Debts) and Financial Malpractices in banks Act,
d) Banks and other Financial Institutions Act, 1991, 2007
e) Any other law or regulation relating to economic and financial crimes including the Criminal and Penal Code.
In summary, the Act provides for the establishment of the Economic and Financial Crimes Commission charged with the responsibility for the enforcement of all economic and financial crimes laws, among others. The offences created by the Act form the basis for the fight against official corruption by successive regimes at the federal level. The offences include terrorism financing, false information in financial crimes, economic and financial crimes. Penalties are also clearly specified. The Federal High Court exercises sole jurisdiction in relation to the provisions of the Act. And there are provisions for all the offences including forfeiture provisions.
The Act also provides for the establishment of special units, etc., Special duties of the Units, Offences relating to Financial Malpractices, Offences in relation to terrorism, Offences relating to false information, Retention of proceeds of a criminal conduct, Offences in relation to economic and financial crime and penalties, and Jurisdiction and special powers of the Court.
The Act makes comprehensive provisions for forfeiture of assets illegally acquired with proceeds of crime. These provisions are: Forfeiture of property, Foreign assets, Forfeiture of passports, Property subject to forfeiture, provisions at the forfeiture of property and Seizure of property. Others are: Disclosure of assets and properties by an arrested person, etc., Investigation of assets and properties of a person arrested for an offence under this Act etc., Interim forfeiture order, Final order, Final disposal of forfeited property, Offences in relation to forfeiture orders, Consequences of an acquittal in respect of assets and properties, Freezing order on banks or other financial institutions, Funds of the Commission, Accounts and audit, Annual report. Other provisions covers: Power to receive information without hindrance, etc., Protecting informants and information, etc. and penalty for false information, Appeals against interlocutory rulings, etc., Immunities, General savings, Interpretation, Short title, Regulations, Schedules and Repeal of Act No. 5, 2002.
2.2.6 Corrupt Practices and other related Offences Act
This Act was first enacted on 13th June 2000 as Act No. 5 of 2002, though subsequently amended and consolidated. It is an Act to prohibit and prescribe punishment for corrupt practices, and related offences. (see the Long Title to the Act).
The Act is structured into seventy-one sections divided into eight main divisions. The Divisions are:
1) Short Title and Interpretation
2) Establishment of ICPC
3) Offences and Penalties
4) Investigation, Search, Seizure and Arrest
5) Provisions Relating to Chairman of the Commission
7) Prosecution and Trial of Offences
The Act established the Independent Corrupt Practices and other Related Offences Commission (ICPC) and vested it with duties relating
(a) Prosecuting corrupt public officers;
(b) Developing Procedures for Prevention of Corruption in the public sector;
(c) Rendering advisory role on reduction of corruption in government agencies
(d) Providing advice to heads of government agencies on reduction of corruption
(e) Enlisting and fostering public support in combating corruption.
Sections 8-26 provide for offences and penalties. Most of the offences revolve around abuse and misuse of public offices and corrupt influences on public officers by private citizens. Sections 27-42 provide for investigation, search, seizure and arrest of suspects of corrupt practices. The office of the chairman takes sections 43-52. Evidential matters are contained under section 53-60. Prosecution, Trial and related procedural matters are provided for under sections 61-64, while sections 65-71 provide for what the drafter described as “General”.
The contents of the Act further outlined under the arrangement of sections as follows: The ICPC Act contains the following provisions: Short Title, and Interpretation.
2.2.7 Establishments of Commission, Appointments and Powers provisions
The provisions relating to institutional frame and administrative structure under the Act are clear. They are: Establishment of the independent Corrupt Practices and other Related offences Commission and Appointment of Chairman and members of the Commission, Appointment of other officers of the Commission, Powers and immunities of officers of the commission, Duties of Officers of the commission, and Standing Orders.
2.2.8 Offences and Penalties under the Acts
The Act provides for a long list of offences. It is important to have an idea of them. they are: Offence of accepting gratification, Corrupt offers to public officers; Corrupt demand by persons; Counselling offences relating to corruption; Fraudulent acquisition of property; Fraudulent receipt of property; Penalty for offences committed through postal system; Deliberate frustration of investigation by the Commission; Making false statements or return; Gratification by and through agents and definition of agents; Bribery of public officers; Using office of or position for gratification; Forfeiture of gratification and other penalties; Bribery in relation to auctions; Bribery for giving assistance, etc., in regard to contracts; Duty to report bribery transactions; Dealing with property acquired through gratification; Making false or misleading statements to the Commission; and Attempts, conspiracy punishable as offences.
2.2.9 Investigation, Search, Seizure and Arrest are also provided for under
The procedure for initiation of an anti-corruption action against a suspect are outlined: Power to investigate reports and enquire into information; Power to examine persons; Power to summon persons for examination; Form and endorsement of summons; Service of summons; Substituted service; Acknowledgement of service; Punishment for evasion of service; Failure to appear after receipt of summons; Authority to issue warrant and to search premises; Seizure of property; Custody of seized property; Disclosure of otherwise privileged information; Legal obligation to give information; Obstruction of inspection and search; Bail of offenders and release of property.
2.3 Provisions Relating to Chairman of the Commission
The office of the chairman is pivotal to the success of the commission. The Act makes the following provision in that respect: Investigation of share accounts and property, etc., Chairman’s Powers to obtain information; Seizure of movable property in bank; Prohibition of dealing with property outside Nigeria; Forfeiture of property upon prosecution for an offence; Forfeiture of property where there is no prosecution or an offence; Dealing with property after seizure to be null and void; Surrender of travel documents; Chairman’s powers to amend or revoke any order or notice; and Independent counsel to investigate the President, Vice-President, etc. The Honoree of today was befittingly the first Chairman of the Commission. ”.
2.3.1 Evidence and relevant procedural issues
The evidence and relevant procedural issues are also provided for. They cover: Presumption in certain offences; Evidence of corroboration; Evidence of accomplice and agent provocateur; Admissibility of statements of accused persons; Admissibility of statements and documents of persons who are dead or cannot be traced, etc., Presumption in favour of admissibility of certificate issue by principal or employer; Admissibility of translation of documents; and Evidence of custom or convention inadmissible.
2.3.2 Prosecution and Trial of offences
The Act clearly provides for the procedural steps for the prosecution of offenders. These include: Prosecution of offences; Joinder of offences; Certificate of indemnity in favour of full disclosure; and Protection of informers and information. Indemnity of officers of the Commission; Liability for offences committed outside Nigeria; General application to any other offence; General penalty section for any other offence; Notice of any prosecution under the Act to be served on the Commission; Powers of the Chairman to make rules; Right of appeal.
2.3.3 Some of the other provisions of the Act, relevant particularly to the Legal Practitioner, are the following:
S. 23(2) & (3) provides:
(2)Any person from whom gratification has been solicited or obtained, or from whom an attempt has been made to obtain such gratification, in contravention of any provision of this Act, shall, at the earliest opportunity thereafter, report such soliciting or obtaining, or attempt to obtain the gratification together with the name, if known, or a true and full description of the person who solicited, or obtained, or attempted to obtain the gratification from him, to the nearest officer of the commission or police officer.
(3) Any person who fails, without reasonable excuse, to comply with sub-sections (1) and (2) shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand naira or to imprisonment for a term not exceeding two years or to both fine and imprisonment.
S. 39 provides:
notwithstanding the provisions of the any other written law, a judge of the high court may, on application made to him in relation to an investigation into any offence under this Act or any other law prohibiting Corruption, order a legal practitioner to disclose information available to him in respect of any transactions or dealing relating to any property which is liable to seizure under this Act provided that no court shall require an advocate or solicitors to disclose any privileged information or communication which came to his knowledge for the purpose of prosecuting any pending proceeding.
This provision should be taken along with S. 192 Evidence Act, 2011 which provides:
(1) No legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure –
(a) any such communication made in furtherance of any illegal purpose; or
(b) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
(2) It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client.
(3) The obligation stated in this section continues after the employment has ceased.
Section 52 provides:
(1) When an allegation of corruption or anything purporting to contravene any provision of this Act is made against the President or the Vice-President of Nigeria or against any State Government or Deputy Governor, the Chief justice of the Federation shall, if satisfied that sufficient cause has been shown upon an application on notice supported by an affidavit setting out the Facts on which the allegation is based, authorize an independent counsel (who shall be a legal practitioner of not less than fifteen years standing) to investigate the allegation and make a report of his findings to the National Assembly in the case of the president or Vice-president and to the relevant state House of Assembly in the case of the state Government or the Deputy Governor.
(2) The Commission shall be enjoined to fully cooperate with such independent counsel and provide all facilities necessary for such independent counsel to carry out his functions.”
2.4 Money Laundering Act
The Money Laundering Act was first enacted in 2004 and re-enacted in 2011. The Act makes comprehensive provisions to prohibit the financing of terrorism, the laundering of the proceeds of a crime, or illegal acts. It also provides appropriate penalties and expands the scope of supervisory and regulatory authorities so as to address the challenges faced in the implementation of the anti-money laundering regime in Nigeria.
Section 14 creates a number of money laundering offences.
These include (1) Conversion or transfer of property derived from illicit traffic in narcotics, drugs etc. with the crime of concealing or disgusting their origin S. 14. (2) Collaboration in concealing or disguising the genuine nature, location, disposition, movement or ownership of the resources, property or rights thereto forum illicit tragic in narcotics drugs or any crime or illegal act S. 14(2) ML(P) Act, each attract penalties of 2-3 years. (3) A Director or employee of financial institutions is also liable where he:
(a) Warns owners of prohibited funds; (b) Destroys or remove prescribed register; (c) Carries out or attempts under a false identity any of the transactions under Section 1-5 i.e.
Other offences relating to many laundering include:
(i) Making or accepting cash payment of 0.5m and 2.0m from individuals and corporate bodies respectively; (ii) Not reporting international transfer of funds and securities of $10,000 or more to the CBN; (iii) Not duly complying to Over the Counter Regulation on exchanging transactions which include proper licensing by CBN, documentation of transaction exceeding $5,000 and profiling and keeping recording customers for at least 10 years – Penalties for (i) – (iii) are N25,000 for individual, N1.0m for financial institution and revocation of license by the CBN. See S. 3
Furthermore, Casinos are to verify and record identity of customers see S. 4. Verification of customer’s identity by financial institutions by original valid documents and photographs and supporting documents: (i) Individuals by personal document; (ii) Certificate of incorporation by companied; (iii) Power of Attorney by company representative; (iv) Casual customer by document; (v) Those suspected of proceed of crime to do proper documentation; (vi) Identify of the principal be sought in appropriate agency cases. See section 5.
Being the full text of the speech by Layi Babatunde, the Managing Director of Lawbreed Publishers, during the Law Week of the Nigerian Bar Association (NBA), Ikeja branch. The title of the paper is “Our role in the effective implementation of Nigeria’s anti-corruption laws”.