By Bola A. Akinterinwa
Transparency International’s 2019 corruption index reminds one of the early 1970s in Nigeria, when government’s buses in Lagos State did carry one warning advert: ‘do not give bribe. both the giver and receiver are guilty.’ The advert, warning people not to engage in acts of bribery and corruption, was symbolic, but did not mean that bribery and act of corruption was taken as a big deal by Government.
In truth, bribery and corruption used to be an instrument for managing economic setbacks: tax evasion, under-reporting of costs to meet budget targets, financial malpractices, etc. And true again, bribery is a manifestation of corruption, which, according to Professor J.S. Cookey, the Chairman of the Political Bureau under the regime of General Ibrahim Babangida, in his report in 1987, constituted the bane of Nigerian society and which he said became manifest as from 1967.
In other words, corruption was not only identified as a critical problem as far back as 1987, even though no solution could be found to it in the period from 1967 to 1987, but also that corruption was part of global economic governance until May 4, 1993 when the Transparency International (TI) was established as a non-profit, non-governmental organisation with a mandate to carry the international battle of anti-corruption to the door steps of all agents of corruption worldwide. The TI, which has its headquarters in Berlin, Germany, operates on the basis of a methodological framework, Corruption Perception Index, believes that corruption not only affects everyone, and therefore, should be of concern to everyone, but also hurts the poorest and most vulnerable members of the global community. It undermines democracy. It also undermines the rule of law.
Corruption undermines development, peace and security. One most recent case is that of President Donald Trump of the United States. He engaged in political corruption in United States’ relationship with the Government of Ukraine, by asking the newly elected President of Ukraine, Volodymyr Zelensky, to investigate corruption charges levied against Hunter Biden, the son of a former US Vice President, Joe Biden, a democrat vying for the position of the President in the 2020 presidential elections.
Donald Trump requested for a quid pro quo before approving delivery of US defence assistance for Ukraine, which is a manifestation of corruption per excellence. It is against this background that Donald Trump has been indicted and impeached by the House and that he is also being tried in the Senate for possible conviction and removal. It is also against this background that the activities of the TI and its corruption perception indices should be explained and understood.
In this regard, what really is the TI fighting? It is fighting corruption. If it is fighting corruption, which type of corruption is it fighting? How is it carrying out the fight ? What is corruption really about in practical terms? TI says that ‘corruption generally comprises illegal activities, which are deliberately hidden and only come to light through scandals, investigations or prosecutions.’ Why is an act of corruption hidden consciously? In fact, how is corruption understood internationally? Why is it that corruption has been difficult to nip in the bud? Why has it been particularly recidivist in Nigeria?
On 31 October, 2003, 140 Member States of the United Nations drafted a Convention against Corruption and signed it on 9 December, 2003. The multilateral treaty entered into force on 14 December, 2005. The treaty is important because it is currently the only comprehensive and binding agreement on a universal scale on anti-corruption. Most countries of the world have signed and also ratified it. Thus, three points are particularly noteworthy about the Convention.
First, it is essentially designed to be preventive in orientation. For instance, in the statement of purpose contained in Article 1, the Convention is ‘to promote and strengthen measures to prevent and combat corruption more efficiently and effectively,’ as well as ‘to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption.’
In the same vein, chapter two, which is on preventive measures, has it in its Article 5 a provision on ‘preventive anti-corruption policies and practices’ and in its Article 6, another provision on ‘anti-corruption body or bodies.’ As provided in Article 5, ‘each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.’
Second, the treaty requires not only the signatories to the Convention, but also all the citizens, and particularly the private sector, to be involved in the implementation of the Convention. Article 5, as shown above, talks about the promotion of participation of the civil society. Similarly, Article 6 has it that ‘each State Party shall… ensure the existence of a body or bodies, as appropriate, that prevent corruption’ in different ways: implementing the State obligations provided in the UN anti-corruption convention, as well as promoting and disseminating knowledge about prevention of corruption. This simply means that the anti-corruption war cannot but be the responsibility of every citizen of the world. Articles 12 and 13 of the Convention further define the context of involvement of the private sector and the participation of the society respectively.
While Article 12 requires all State Parties ‘to prevent corruption involving the private sector, enhance accounting and auditing standards in the private sector,’ as well as providing effective penalties whenever there is failure to comply with official measures, Article 13 stipulates that every State Party shall ‘promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organisations, and community-based organisations in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption.’
Third, and perhaps, more significantly, the Convention did not define what constitutes an act of corruption, but criminalises it in Chapter 3. By implication, the conception or conceptualisation of corruption has to be gleaned from the measures suggested to the State Parties to the Convention as possible solutions. In other words, when corruption is explained in its ordinary sense, it is simply an act of dishonesty. It refers to any fraudulent action by people in power. It also refers to any act of alteration or falsification, especially in the context of changing the original sense of a word, or debasing a word. Corruption involves seeking illicit benefits. However, the technical or deductive, definition in the UN Convention is not necessarily different, it is only more complex in terms of meaning.
Put differently, if we espy the measures required to be taken by the signatories to the Convention, what constitutes corruption can be easily delineated. In this regard, if the general public and private sectors are involved as stakeholders, especially in terms of the need for the Government to take anti-corruption measures, such as compelling public officials to promote efficiency, transparency and accountability, as well as merit-based recruitment in public administration, then an act of corruption cannot but be an engagement in any act of inefficiency, non-transparency, non-accountability, non-merit-based recruitment. In short, any engagement in an act of dishonesty, necessarily constitutes an act of corruption.
The UN Convention appears to have left to the signatory State Parties the responsibility to articulate the notion of corruption, and the responsibility to prevent, investigate and prosecute any act of corruption. In this regard, there is no disputing the fact that Nigeria has done well in terms of the rule of pacta sunt servanda. Nigeria respects the principle of sanctity of agreements as provided in the 1999 Constitution as amended. It is truism to say that the Government of Nigeria, under Chief Olusegun Obasanjo, established the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other Related Offences Commission (ICPC).
The Corrupt Practices and Other Related Offences Act 2000, which established the ICPC, also does not provide any definitive conception of what corruption is. It only gave examples of corruption cases, such as bribery, fraud, gratification, fraudulent receipt and acquisition of property, making false statement or return, refusal to report fraudulent transactions, etc.
In reconciling the understanding of the foregoing with the rating of Nigeria by the TI in the context of Nigeria’s backward movement from the 144th in 2018 to 146th in 2019, and the reaction of the Government of Nigeria, particularly through the Minister of Justice and Attorney-General of the Federation, Abubakar Malami, it is useful to remember that Section 61 of the ICPC Act has it that ‘every prosecution for an offence under this Act or any other law prohibiting bribery, corruption and other related offences shall be deemed to be done with the consent of the Attorney-General.’
The implication of this is that the Attorney-General is presumed to be the reservoir of all knowledge about corruption offences and their prosecution. If the TI is contesting any position or rating of Nigeria, reactions should be made in light of the existing knowledge in possession of the Attorney-General and all efforts at prosecution by both the ICPC and the EFCC. The challenge therefore is this: has Nigeria done more than what the TI has considered in rating Nigeria the 146th out of a total of 180 countries? If yes, what should have been the appropriate position of Nigeria? What are the determinants of the rating? Is Nigeria’s reaction and condemnation of the rating not myopic?
TI’s Rating and Nigeria’s Reaction
Nigeria’s Minister of Justice and Attorney-General, Abubakar Malami, reportedly said that, ‘in terms of the fight against corruption, we have been doing more, we have done more, and we will continue to do more out of inherent conviction and desire on our part to fight against corruption, devoid of extraneous considerations relating to the rating by Transparency International.’ More important, he reiterated that ‘our resolve to fight corruption is inherent and indeed devoid of any extraneous considerations, we will continue to do more and we will double efforts.’
It is therefore crystal clear from the perspective of the Attorney-General that what constitutes a fight against corruption is limited to legislation, its enforcement, and recovery of looted assets. Most unfortunately, however, the determinants of corruption are more than legislation and enforcement.
Apart from the general criteria for evaluation of efforts, the TI also considers non-acceptability of selective prosecution of corruption suspects, attacks on the media, intimidation of the whistleblowers, and the factor of ‘big money.’ Other determinants include experts’ assessments, data surveys focusing on access to information, bribery of public officials, kickbacks in public procurement and enforcement of anti-corruption law.
As explained by Mr. Auwal Rafsanjani, the Head of TI in Nigeria, the corruption index ranks 180 countries and territories by their perceived levels of public sector corruption, in the opinion of experts and business people, using a scale of 0 to 100, in which case zero point means ‘highly corrupt’ and 100 points imply ‘very clean.’
In the words of TI, the analysis by TI ‘suggests that big money in politics and promoting inclusive political decision-making are essential to curb corruption. From fraud that occurs at the highest levels of government to petty bribery that blocks access to basic public services, like health and education, citizens are fed up with corrupt leaders and institutions. Thus, what the TI appears to be looking at is completely different from what the Government of Nigeria is trying to underscore. The Government is much concerned about enforcement and prosecution.
In this regard, and explicated from another perspective, can the Government of Nigeria rightly argue that fraud does not occur within its cabinet? If not, is there any standard rule of punishment for all those who have been accused publicly of corruption? To what extent can the TI rating of Nigeria be faulted? True, contempt of court or disregard for the rule of law is necessarily a manifestation of corruption. Has the Government of Nigeria not been disregarding the rule of law when it is not convenient for it? Is the mistreatment by the Department of State Services (DSS) of Mr. Sowore, accused of sponsoring a revolution and who was still under court prosecution, in an open court not an expression of disregard for the court and rule of separation of powers? Without any shadow of doubt, the act of the DSS was reprehensible in the eyes of the international community. The mistreatment was an extension of corruption. As clearly shown by the TI, any blockage of access to basic facilities is an expression of corruption.
Another point of truth is that the PMB administration is fighting corruption at the top echelon, while allowing its growth at the grass root level. In other words, anti-corruption is top-level-driven, it is neither top-bottom nor bottom-up approached. This gives the impression of a selective battle against corruption. In fact, how can it be rightly argued that PMB is sincerely and determinedly prepared to fight corruption holistically, when people who are accused and even indicted, will easily leave their political parties to join the ruling party in order to escape being prosecuted? And more disturbingly enough, why will anyone want to fault the rating of the TI when a gubernatorial candidate, Uzodinma, accused of sharp practices, and still under court prosecution for non-execution of some contracts duly and fully paid for, will be declared a winner in an election, and immediately the accused Uzodinma is qualified to enjoy the privilege of immunity? Shouldn’t, in a normal society and setting, an individual under criminal prosecution be simply disqualified and prevented from governing law-abiding citizens? If truth be told, the description of Nigeria by a former British Prime Minister as ‘fantastically corrupt’ is just a tip of the iceberg.
If anyone does not believe that Nigeria is extraordinarily very strong in corruption activities, let whoever is interested go to Saint Agnes bus stop or to Sabo bus stop in the Yaba Local Government area to see the extent of social indiscipline and ‘corruption life’ at play. A police station is located at Sabo bus stop. Policemen and traffic warden are stationed in the two bus stops. Commercial vehicles drive against traffic in the glare of the policemen. Commercial vehicles do not respect traffic light, motor cyclists and try-cyclists are visibly above the traffic rules, and, yet, the policemen will give priority of way to those who are flouting the traffic light, under the pretext of the need to first clear the traffic congestion created.
More disturbingly, the commercial vehicles do not stop to carry passengers in the service lanes reserved for them. It is on the express dual carriage way they do stop in the glare of the police, to shout and look for passengers. More annoyingly, the Divisional Police Officer is only 20 metres away from the bus stop and his men are directly at the junction.
With this type of situation, considering the fact that TI researchers also pass through Sabo and Saint Agnes bus stops and see for themselves the manifestations of indiscipline and corruption, their rating could not have been more correct. Again, who says that the various governments of Nigeria have not been fantastically corrupt if the Federal Government of Nigeria could collect deposits from the general public in 1994 for houses that were meant to be allocated in December 1994, but which, as at 2020 no one is talking about? How do we explain the fact that such houses were not built, not to talk about being allocated, more than two decades ago? If the Federal Government steals the people’s monies, what is that, if it is not fraud and corruption? If the TI has actually being more painstaking in their perception, Nigeria might have qualified to be in the 180th position.
More importantly, it cannot be rightly argued that any meaningful progress has been made in the war against corruption if we do consider the positions that Nigeria has always occupied in the past one decade. In the period from 2008 through 2011, when maximum points obtainable was ten, Nigeria scored 2.7 points in 2008, 2.5 in 2009, 2.4 in 2010, and 2.4 in 2011. In other words, the situation of corruption was worsening, with a gradual decline from 2.7 to 2.4. With 2.4 points, Nigeria was placed in the 134th position in 2010 and 143rd in 2011.
As from 2012, when the methodology for assessment was changed and the maximum points obtainable became 100, the maximum point ever scored by Nigeria was 28% and that was in 2016. Nigeria was placed in the 136th position. The position reflected the new determination of the newly elected President Muhammadu Buhari. But thereafter, the maximum points scored by Nigeria was only 27% and that was in 2012, 2014, 2017 and 2018, thus occupying the 139th, 136th, 148th and 144th positions respectively. Consequently, if the 2019 rating moved Nigeria backward from 144th to the 146th position, what really is the big deal. Government should move away from myopia and prepare for the challenges of coronavirus, the new global problem.
Anti-corruption war should begin with the Buhari administration and it should be both top-bottom and bottom-up in approach, as well as horizontal in design.