What
does corruption look like? The short answer is: Not what you think it
does, at least according to President Goodluck Jonathan who while
recently “rethinking corruption” said: “Over 70 per cent of what are
called corruption (offences), even by the Economic and Financial Crimes
Commission and other anti-corruption agencies, is not corruption, but
common stealing.”
This very high percentage suggests that
Nigeria may be nearly corruption-free. If this is the President’s
proposition, this government has something of a mountain to climb to
satisfactorily prevent and combat corruption and impunity of
perpetrators in the country.
The “over 70 per
cent cases of corruption” that fit as “common stealing” under the
President’s definition would presumably include dozens of unresolved
corruption cases against former governors, unresolved cases of
corruption in the petroleum sector especially the case of the missing
$20bn from the account of the Nigeria National Petroleum Corporation,
unresolved fuel subsidy scam, the unimplemented KPMG report on
corruption within the NNPC, unresolved cases of corruption in the
pension fund, unresolved cases of corruption in the management of the
Universal Basic Education Commission funds, and the unresolved cases of
corruption in the capital market. The list goes on!
If these are
cases of “common stealing”, then what is corruption? Nigerians would
like to know exactly the measurement or empirical data used to come up
with such a notion of corruption. Clearly, the message being conveyed
would seem to be that the country is making progress against corruption.
But this idea of corruption is certainly in the realm of feelings and
not of legal rules, morality or facts.
Here’s the thing: The term
“corruption”, probably the most used word (inevitably subjectively and
controversially, but almost always habitually) in the whole vocabulary
of politics, is derived from the Latin verb curruptus, which is
translated as “to break”. Linguistically, the word is used rather
pejoratively and censoriously to refer to any of the following:
“dishonest or illegal behaviour, especially of people in authority”;
“the act or effect of making someone or something change from moral to
immoral standards of behavior”.
According to the House of Lords
in Cooper v. Slade, corruption is, “Purposely doing an act which the law
forbids as tending to corrupt” [See 8 [1857] HL Cas 746]. In Biobaku v.
Police, the court describes corruption as “acting improperly.” Thus,
there will be corruption when “a public officer fails to carry out his
duties honestly and impartially, and when he is affected by
considerations of benefit to himself or another person” [See 1951] 20
N.L.R. 30].
These definitions presuppose legal prohibition of
some “dishonest” conduct as “corrupt”, and also reflect some universal
moral sensibilities, seeming to suggest that corrupt acts are those
which do not agree with some moral and social norms presumably of
universal application.
The classifications used generally in
anti-corruption treaties and standards and national laws such as the UN
Convention against Corruption and the Corrupt Practices and Other
Related Offences Act to characterise these kinds of behaviour are:
Bribery, embezzlement (stealing), abuse of office, trading in influence,
and illicit enrichment (another form of stealing).
The Corrupt
Practices Act however uses analogous terminologies such as bribery,
fraud, gratification and other related offences. Offences punishable
under the Act include: wilful giving and receipt of bribes and
gratification to influence a public duty, fraudulent acquisition and
receipt of properties, deliberate frustration of investigation by the
Independent Corrupt Practices Commission, making false returns, making
of false or misleading statements to the ICPC, attempts, and
conspiracies.
All of the previously highlighted unresolved cases
of corruption would clearly fall under any of the classifications under
the UN Convention or the Corrupt Practices Act. This is a no-brainer,
really.
What President Jonathan therefore called “common
stealing” is what I referred to in my new book (Corruption and Human
Rights Law in Africa) as “the deliberate, intentional mass stealing of
public wealth and resources by senior state officials entrusted with its
fair and honest management for the common good and achievement of human
rights, whether carried out individually or collectively, but with the
support, encouragement, or acquiescence of the state, combined with a
refusal to genuinely, thoroughly and transparently investigate and/or
prosecute the mass stealing and recover stolen assets, which violates
the human rights of the economically and socially vulnerable.”
Let
me say a bit more about why I think the “over 70 per cent thesis” is at
odds with legal rules and credible evidence of corruption and its
devastating consequences on the effective enjoyment of human rights in
the country.
That there is corruption in the country is beyond
doubt, especially if it is considered that Nigeria was ranked 144 of the
177 countries on Transparency International’s 2013 Corruption
Perceptions Index. Nigeria has ranked very poorly in Transparency
International’s CPI for many years, and the US State Department Country
Report for 2012 illustrates the integrated problems of corruption,
money laundering, poverty and lack of respect for human rights in the
country.
But the government would readily dispute this evidence.
The government in fact once said that, “Perception is different from
reality.” Yes, the CPI may not be perfect but no index is. Even so,
perceptions may provide a pointer as to the real evidence of corruption.
In any case, while real evidence of corruption may be difficult to
obtain (in part because of the secretive and complex nature of corrupt
acts and the fact that those who perpetrate corruption rarely admit to
doing so), its devastating effects across the country are too glaring to
ignore.
If it is true that knowledge comes from seeing, most
Nigerians will “know corruption when they see it”: whether it is in
decayed infrastructure, weak and inaccessible health and education
systems, crumbling and poorly maintained roads, lack of regular and
uninterrupted electricity supply, or rampant violent crime, insecurity
(and the slow response to Boko Haram’s abduction of hundreds of Chibok
schoolgirls) and entrenched impunity of perpetrators.
As a matter of fact, citizens’ anger at corruption by high-ranking public officials has never been so intense.
It
is clear that corruption is the biggest obstacle to alleviating poverty
and enjoying human rights in the country. If this government is serious
about combating poverty and achieving basic human rights for millions
of vulnerable and marginalised Nigerians, it has to publicly acknowledge
the prevalence of high-level official corruption in the country.
While
the country’s many human rights problems can be linked to bad
leadership and gross incompetence, high-level official corruption is
without question a big part of it. This kind of corruption fundamentally
contrasts with even a minimal notion of the rule of law, and the idea
of government as a public trust.
As Justice Mark L. Wolf, who has
made a strong case for an International Anti-Corruption Court, stated,
“Corruption is an insidious plague that destroys the capacity of
government to protect and improve the plight of the people it is
constituted to serve.”
It is difficult to imagine a greater
breach of trust than when senior public officials entrusted with the
people’s wealth and resources then turn round to use their public
entrusted positions to steal people’s resources with impunity (basically
turning public treasury into a private “cashbox”).
Olaniyan is Legal Adviser, International Secretariat of Amnesty International, London.
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