Creation of multiplicity in punishment will give bite to Nigeria’s anti-graft war, says Prado

The efficacy of the Independent Corrupt Practices Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) in the fight against Corruption in Nigeria has remained major issue. The outcome is that it heightened the call for the restructuring of the two anti-graft agencies. The call became more pronounced when a government Panel suggested a merger of the two institutions. Now that an avowed anti-corruption president-elect, Mohammadu Buhari is going to be in the saddle, the interest is renewed. But in this interview, Professor Mariana Mota Prado, an Associate Professor and Associate Dean of Graduate Studies at the Faculty of Law, University of Toronto, who was in Lagos as a guest lecturer at the 2015 edition of PUNUKA Attorneys & Solicitors yearly lecture, gave a new perspective to the debate. He also suggested how the anti-graft war can be reinvigorated in the country to YETUNDE AYOBAMI OJO.

YOU have a global knowledge and experience of anti-corruption laws in various jurisdictions including Brazil and Canada. What is your quick assessment of Nigerian anti-corruption laws and institutions? In your opinion, is there any possible area of improvement in our legislative framework?
Similarly to Brazil, Nigeria has an extensive stock of anti-corruption legislation and seems to be investing in institutional multiplicity. Such multiplicity has been either created or strengthened by the implementation of a sophisticated apparatus of anti-corruption agencies in the 2000s, such as the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC). My impression is that these institutions, albeit facing some obstacles, have brought improvements to the oversight and investigative functions in Nigeria. In other words, the probable functional overlap between these two agencies may have strengthened their ability to fight corruption. I think the next step, as I suggest in my lecture, is to strengthen such multiplicity even further and also explore ways to create multiplicity in punishment.

What informed you developing such an interest and deep expertise in this topic?
Law & Development investigates whether and how law can help developing countries improve their socio-economic outcomes, whether through increased life expectancy, better governance, elevated incomes or advancement in literacy. I got interested in law and development because Brazil went through a very transformative period while I was attending law school between 1996 and 2000. It adopted most of the reforms of the so-called Washington Consensus, including a very ambitious privatization process.

I decided to study this process in my doctorate, but coming from a civil law jurisdiction deeply influenced by Europe, my approach to legal research at the time was very doctrinal. My supervisor, the world’s leading expert on corruption, Susan Rose-Ackerman, encouraged me to look beyond the laws and statutes implemented during the privatization process, and to investigate the underlying factors driving the changes. Who were the main actors? What were their motivations? Why were the results so different in different sectors? This is how I learned more about the role that the World Bank had played in this process, and I came to realize that there were a lot of unanswered questions in this field known as Law & Development. So, as soon as I finished my doctorate, I started to venture beyond privatization and to acquire more knowledge and expertise in other topics related to this field, including the topic of this lecture, corruption.

How effectively are Canadian anti-corruption laws applied extra territorially? What are the impediments if any for effective implementation?
Well, in addition to being a law professor, for the last two years, I have served as a board member of Transparency International Canada. In this capacity, I have had a chance to actively participate in the movement to press the Canadian government for greater enforcement of its extra-territorial legislation, especially the Corruption of Foreign Public Officials Act (CFPOA). According to Transparency International’s assessment of countries’ compliance with the OECD convention, Canada used to be in the limited enforcement category.

In 2014, it moved up to the moderate enforcement category, thanks to the federal government’s 2013 amendments strengthening the CFPOA as well as the increase in enforcement activity by the Royal Canadian Mounted Police. Further improvements in enforcement, however, are still necessary for Canada to join U.S., Germany, UK and Switzerland as an active enforcer. The Transparency International Report is available at  https://www.transparency.org/exporting_corruption.

We understand you are originally from Brazil, could you let us know how the country has managed the plague and if there are any useful lessons for us?
As I have explored in my lecture, Brazil has implemented what I call “institutional multiplicity”, which is the existence of multiple institutions performing the same function. Generally, an accountability system to fight corruption has three pillars: oversight, investigation and punishment. If there is only one institution responsible for each of these functions and they fail to perform their function (for lack of resources, due to political influence or simply due to backlog), the accountability system fails to effectively punish corrupt activities. Brazil has made significant progress in creating multiplicity in oversight and investigation, and is now working towards creating multiplicity in punishment. There are many differences between Brazil and Nigeria, but I think Nigeria could learn a lot from the Brazilian experience.

There have been arguments that corruption may have some positive dimension or can positively influence the functioning of government? What is your view on that?
I am aware of this debate, but I think the evidence is, at best, inconclusive. There is much more evidence to the contrary.

There are serious cultural issues sometimes when it comes to defining corruption vis a vis gift, tip, honor. How does the Canadian/Brazil systems deal with these?
The cultural dimension is certainly an important piece of the puzzle, but it is also one that is hard to change. How do you change culture? It is a slow moving process, and often an organic one. In other words, it is not something that government officials can modify with the stroke of a pen. This is why discussing how legal reform can help combat corruption seems to be a better starting point. And one should not underestimate the power of legislation in changing culture. It wasn’t long ago that people drove without wearing seatbelts. Now, when most people enter their cars (at least in Canada and Brazil) they automatically put them on. This is a cultural change that was promoted by legislative reform. So, while statutes are not a silver bullet, they are an important tool to modify how society behaves.

It is argued that Corruption as a phenomenon is as old as humanity’s history and therefore law may not be a sufficient or adequate tool to address this sociological and human issue. Do you agree?
No I don’t. You could replace the word “corruption” in this sentence with “murder”, however nobody would argue against the use of laws to deal with homicides, right? The fact that we criminalize homicides and yet we still see them happening does not make us throw our hands up in despair and give up on legislation because laws have not stopped people from killing. Certainly they will not stop it completely, but they can help reduce the total number. Why? Because people respond to incentives (rewards and sanctions) and these can be changed if we modify the institutional framework that creates them. So, if murder is effectively caught and punished, there will be fewer murder cases. I believe the same can be said for corruption. Of course, laws alone will not do the trick. We need to understand the underlying and long-term causes of the problem and tackle those as well. But laws and other initiatives, such as social programs, need to work together, as there is no easy answer in solving complex social problems.

How do you feel coming to Nigeria to discuss this very important topic and what are your expectations?
First and foremost, I feel very honoured to be delivering such a prestigious lecture and I am very grateful to the organizers for this invitation. Second, I am very happy to have an opportunity to dialogue with those who have been dealing with the problem of corruption in the field, in both the private and public sectors. Academics have a lot to learn from policymakers and influential stakeholders, and this is one of these rare opportunities for me to hear about their experiences and learn from them. Last but not least, Nigeria is at a crucial point in its history. Significant reforms to combat corruption have been implemented in the last few years, and there is a healthy and engaged debate about what has been achieved so far and what to do next.  I am very excited to be invited to participate in this conversation.

QUOTE
Such multiplicity has been either created or strengthened by the implementation of a sophisticated apparatus of anti-corruption agencies in the 2000s, such as the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC). My impression is that these institutions, albeit facing some obstacles, have brought improvements to the oversight and investigative functions in Nigeria. In other words, the probable functional overlap between these two agencies may have strengthened their ability to fight corruption. I think the next step, as I suggest in my lecture, is to strengthen such multiplicity even further and also explore ways to create multiplicity in punishment.