Position of Igbo Leaders of Thought on corruption probe (3)
IT is a measure of the importance attached to the Code of Conduct that the oath of office prescribed for the President (and State Governor) in the Seventh Schedule to the Constitution requires them to swear not only to “preserve, protect and defend the Constitution,” but specifically to “abide by the Code of Conduct.”
The importance of the Code is also affirmed by the Code of Conduct Bureau and Tribunal Act, cap. 56 of the Laws of the Federation 1990 edn, which provides:
“The aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability.”
The relevant provisions of the Code for present purposes are contained in paragraphs 1, 6, 9, 11 and 13, which, for ease of reference, are herein reproduced.
1. A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.
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.
(2) For the purposes of sub-paragraph (1) of this paragraph, the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or persons who have contracts with the government shall be presumed to have been received in contravention of the said sub-paragraph unless the contrary is proved.
(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.
9. A public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy.
11. (1) Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter –
(a) At the end of every four years; and
(b) At the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarred children under the age of eighteen years.
(2) Any statement in such declaration that is found to be false by any authority or person authorised in that behalf to verify it shall be deemed to be a breach of this Code.
(3) Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift, or loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.
13. A public officer who does any act prohibited by this Code through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code.
The most far-reaching of the stipulations in the Code is that contained in paragraph 1 above, which enjoins a public officer not to “put himself in a position where his personal interest conflicts with his duties and responsibilities”. The provision in the paragraph underscores the nature of a public office as a public trust, with all the obligations and restrictions, which the law imposes on trustees of a private trust.
State or political power is held and exercised by the rulers in trust for the public, from which it follows that those entrusted with it are subject to the obligations and restrictions implied in the concept of trusteeship, in particular the duty of honesty and fidelity, and the prohibition against using the position for personal benefit. Both the duty and the prohibition are sanctioned by making the trustee strictly accountable for any such benefit or profit, and generally for the way he administers the trust. Accountability is thus a cardinal principle of the trust concept, to which trustees, whether of a private or public trust, must conform.
Perhaps, next in importance to the provision in paragraph 1 is that in paragraph 9 enjoining a public officer “not to do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of another person knowing that such act is unlawful or contrary to any government policy” (emphasis supplied). The provision addresses more squarely the problem of abuse office. It is reinforced by the provision in section 15(5) of the Constitution directing the state to “abolish all corrupt practices and abuse of power”.
Paragraph 13 of Code is also worthy of note. A person fronting for a public officer in the perpetration of corrupt practices or abuse of office is a “nominee, trustee or other agent” within the meaning of the paragraph; accordingly, the President or any other public officer perpetrating corrupt practice or abuse of office through a front “shall be deemed ipso facto to have committed a breach of this Code” under the said paragraph 13.
The Code prescribes sanctions for breaches of its stipulations and a machinery for their enforcement. The sanctions are in general, unelaborated terms, viz “(a) vacation of office or seat in any legislative house, as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office,” and (d) “such other punishment as may be prescribed by the National Assembly” (paragraph 18, Fifth Schedule).
The enforcement machinery consists of a Code of Conduct Bureau (CCB) and a Code of Conduct Tribunal (CCT). The former is entrusted with the responsibility to (a) receive declarations of assets by public officers; (b) to examine such declarations; (c) to keep custody of them; and (d) receive complaints about non-compliance with or breach of the provisions of the Code or any law in relation thereto, investigate the complaint and, where appropriate, refer such matter to the Code of Conduct Tribunal: (paragraph 3, Third Schedule). The Tribunal is to try such complaints as are referred to it by the Bureau and, where it finds a person guilty of non-compliance with, or contravention of, the Code, impose any of the prescribed sanctions.
he statute law has two main enactments on corrupt practices, supplementing the relevant provisions of Criminal Code and the Penal Code. These are the Corrupt Practices and Related Offences Act 2000, and the Economic and Financial Crimes Commission Act 2004 (re-enacting an earlier Act of 2002). The offences of corruption, fraud and related offences under the former of the two Acts and the punishments prescribed for them are, by the express provision of the Act, made applicable to “a person employed in any capacity in the public service of the federation, states or local government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes judicial officers serving in magistrates, area/customary courts or tribunals”.
They also apply to corruption, fraud or related offences committed by such persons in the discharge of their official duties in relation to the money, property or affairs of the government, federal, state or local government, arising from the award of contracts, issuance of licenses or permits, employment of staff or any other business or transaction: see sections 8, 9, 10, 11 and 12 of the Act.
A body, called the Independent Corrupt Practices Commission (ICPC), is established, with power to investigate and prosecute persons, both private persons and public servants, including public servants employed in the service of the state or local governments, alleged to have committed corruption, fraud or related offence under the Act or under any other law, e.g. the Criminal Code or Penal Code, regardless of whether such other law is a federal or state law. Complaints against the Governor of the State for corruption, fraud or related offence involving the money, property or affairs of the State Government may be made to the ICPC, but the investigation of the complaint is to be conducted by an independent counsel authorised in that behalf by a national functionary, the Chief Justice of Nigeria, under section 51(1) of the Act.
The EFCC Act has a wider coverage than corrupt practices in all its various forms, as strictly understood. Economic and financial crimes in the title of the Act is given a very wide meaning in section 46 of the Act wherein it is defined as “the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited good, etc.” (Emphasis supplied) This definition clearly covers corrupt practices, and more besides.
The Act prescribes sanctions, and gives to the Commission frightfully wide-ranging and sweeping powers to enforce them. But it seems uncalled for, and inappropriate, and will needlessly over-burden this write-up, to go into a discussion of them here.
The undoubted adequacy of the laws on corrupt practices compels the conclusion that their persistence and increased incidence in the face of, or despite, the adequacy of the laws, is attributable to inadequacy of enforcement of the laws; it also raises he question as to the factors responsible for such inadequacy of enforcement.
TO BE CONTINUED
• Prof. Nwabueze, a constitutional lawyer wrote this on behalf of Igbo Leaders of Thought