How to win corruption battle’

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Ajibade

The majority of Nigerians who voted for President Muhammadu Buhari in the 2015 general elections did so because they were fed up with the sickening levels of corruption that pervade Nigerian society.
It is a generally accepted fact that corruption in Nigeria has reached endemic proportions and people have had enough of it; at least people other than those who are direct or indirect beneficiaries of this corruption.

A former President, Chief Olusegun Obasanjo, when he signed the Independent Corrupt Practices Commission Bill into law on 13th June 2000 stated thus: “with corruption, there can be no sustainable development no political stability. By breeding and feeding on inefficiency, corruption invariably strangles the system of social organization. In fact, corruption is literally the antithesis of development and progress.”

Although there is considerable skepticism as to whether Chief Obasanjo himself practiced what he preached whilst he was in office, it is to his credit that it was under his administration that corruption was first identified as a substantial problem in Nigeria with specific legislative steps taken to combat the scourge. President Buhari’s battle against corruption has commenced.

However, as has often been found in Nigeria, when you fight corruption, corruption fights back and given the sums reportedly generated by corrupt practices, those involved have more than enough resources to fight with.

It is for this reason that we think the government needs to take the fight against corruption to another level if it’s going to stand any chance of reducing it significantly even if it cannot eliminate it completely.

Drastic problems require drastic solutions and we propose some solutions that may be considered drastic but which we feel are justified by the enormity of the problem corruption constitutes in Nigeria.

Information obtainable from the website of Transparency International accessed at http://www.transparency.org/news/feature/nigerias_corruption_challenge, quoting Global Financial Integrity, asserts that Nigeria has lost an estimated $157 billion to corruption.

We get a proper perspective of the enormity of the problem when we think of it in terms of the infrastructure, housing, health care facilities amongst other that could be enjoyed by Nigerians if these sums were saved and applied towards these ends.

Entrapment

Entrapment is the process by which law enforcement authorities and personnel proactively create situations and scenarios in which a person commits a crime, with a view to apprehending the person and securing his or her conviction for the crime.

In a paper published in the Nigerian Institute of Advance Legal Studies Journal on Criminal Law and Justice in 2011, Akinola Akintayo of the Faculty of Law, University of Lagos examined the various types of entrapment, drawing distinctions between “fair” and “unfair” entrapment.

According to him, fair entrapment occurs where the law enforcement authorities merely provide an opportunity for the accused person to commit the offence or facilitate the commission of the offence; whilst unfair entrapment occurs where the law enforcement authorities actively induce the accused person to commit the offence.

Mr. Akintayo acknowledges that the distinction between the two types of entrapment is often difficult to draw and that the determination whether a particular instance of entrapment is fair or unfair will depend on the facts of the particular case.

Whilst entrapment is not specifically recognised as a defence to criminal liability under Nigerian law, Mr. Akintayo argues that “unfair entrapment” implicates the breach of various constitutional rights protected under Part IV of the 1999 Constitution as amended, whilst “fair entrapment” could be justified pursuant to the provision of section 45 of the same Constitution, which empowers the government to pass laws that derogate from these constitutional rights where such laws are reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health.

In our view, the endemic proportion that corruption has attained in Nigeria makes it eminently justifiable that government deploy all means at its disposal to discourage corrupt practices and will justify the express legislative adoption of entrapment as a tool for discouraging corruption.

As Mr. Akintayo notes in his paper, one of the strongest arguments proffered for the practice of entrapment is the deterrent effect that it has on wrongdoers and their natural reluctance to participate in wrongdoing once they are uncertain whether their co- participants are law enforcement agents (full time or part time) merely luring them into a trap.

One of the greatest facilitators of corruption in Nigeria has been the impunity with which it is perpetrated and the general belief that there is no sanction for corrupt practices.

A review of our laws and the specific encouragement of entrapment as a policy has the potential to change this dynamic immediately.

Once there are a few examples of persons successfully entrapped engaging in corrupt acts, this will serve as a strong deterrent, as persons will be wary of demanding, offering, accepting or receiving bribes or other corrupt inducements when they don’t know whether the demand or offer is a trap that could lead to prosecution and jail.

Of course, the process by which entrapment can be implemented as a specific policy aimed at fighting the scourge of corruption has to be carefully thought through and necessary safeguards have to be put in place to ensure that it achieves the desired result and is not used as a means of arbitrary persecution.

President Buhari has recently inaugurated a Presidential Advisory Committee on Anti- corruption headed by Professor Itse Sagay, SAN.

We recommend that the Committee should advise the government to push for specific legislation authorizing the use of entrapment as a legitimate means of apprehending persons engaged in corrupt practices.

We also recommend that government should be advised to set up or re- energize task forces such as the National Anti-Corruption Volunteer Force set up by the Independent Corrupt Practices Commission.

These task forces should be constituted in various spheres and sectors of society and of the economy and should enlist willing Nigerians to participate in this crusade to rid our country of corruption and entrapment should be a legitimate tool to be utilised in the fight. Make anti- corruption lucrative The motivation for all corrupt acts is financial reward.

Thus, if the corrupt realise that rather than bringing them financial reward, engaging in corrupt acts could cause them financial loss, that is likely to be a strong deterrent to engaging in corruption. There are many sides to this.

The first side is by the imposition of stiffer financial penalties for corrupt acts. Such penalties could be flat or graduated rates or could be calculated based on multiples of the illicit reward that the corrupt gained or hoped to gain.

The imposition of such financial penalties could be in addition to or in lieu of jail terms and is likely to be a more effective deterrent to corruption.

The Corrupt Practices and Other Related Offences Act and the Economic and Financial Crimes Commission Act both make some provision for the imposition of financial penalties, but these penalties are not stiff enough in our opinion and the emphasis thus far has been more on sending offenders to jail.

Given the prevalence of corruption in Nigeria, the emphasis on jail terms will require a considerable investment in the construction of many more prisons, if the enforcement of anti- corruption is to be taken seriously.

Moreover, a jail term is not too much of a deterrent where the perpetrator of the crime can serve his or her sentence and then come back into society to enjoy the ill- gotten gains.

Such jail terms will seem less of a holiday where the perpetrators of corrupt acts suffer financial ruin in addition and this may even suffice in lieu of jail terms.

Another side to this is that effective pursuit and prosecution of corruption could prove very lucrative for the Nigerian government.

Information obtainable from the website of the United States Securities & Exchange Commission accessed at http://www.sec.gov/spotlight/fcpa/fcpa- cases.shtml indicates that between 1997 and 2015, the Department of Justice and the Securities & Exchange Commission generated sums in excess of 4 Billion Dollars in fines and penalties through active and aggressive prosecution of companies and individuals found to have run foul of the Foreign Corrupt Practices Act (FCPA). This is a model that Nigeria would do well to follow.

Aside from stemming corruption, it might also help to shore up government’s finances! The third side to this is that government should actively promote and reward whistleblowing and entrapment of corrupt persons.

One of the reasons why corruption has thrived is because, aside from attaining a moral high ground or standing on principle, there has been no incentive for people who are not corrupt to actively participate in reporting and prosecuting those who are.

One way of signaling government’s seriousness about stamping out corruption is to reverse this dynamic. Government should promote legislation that would provide healthy rewards for persons who report corrupt practices and cooperate and participate in the successful prosecution of the corrupt. This will turn the tables on corruption and make anti- corruption attractive and lucrative.

Indeed, in appropriate cases, the level of reward could also be linked to the amount by which the public purse has been protected from depletion by the courage of those who take it upon themselves to report and expose corruption in the public sector.

Legislative amendment Implementation of these proposals will require legislative action either by way of fresh legislation or amendment to current legislation.

The willingness or otherwise of the legislature to endorse and support such legislation will be a barometer of whether and to what extent the legislature is part of the problem of corruption in Nigeria.

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