The significant nature of civil servants’ work is such that persons and institutions who are directly affected by the performance of such functions may attempt to influence such officials through various allurements which may be inconsistent with the due performance of such functions and work ethics. It is this realization that perhaps prompted the Federal Government to enact the Conduct of Conduct Bureau and Tribunal Act (CCBTA). Section 2 of the Bureau deals with the aims and objectives of the Bureau. It provides that ‘The aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government and to ensure that the actions and behavior of public officers conform to the highest standards of public morality and accountability.’ Hence the provisions of the Bureau are an articulation of ethical values intended to guarantee assiduity on the part of civil servants.
The aims and objectives of the Bureau are achievable if the provisions of the Code of Conduct are assiduously implemented. The Code of Conduct Act contains prohibitions that can undermine the essence of a public service. Certainly these prohibitions may have assisted in inhibiting some public servants from indulging in undesirable conducts. Corruption and abuse of office are canker. Where they are prevalent retrogression and ineffectiveness becomes dominant. Such a place or system can hardly perform optimally.
Section 3 of the CCBTA states that the functions of the Bureau shall be to-
(a) Receive the assets declarations by public officers in accordance with the provisions of this Act; (b) Examine the assets declarations and ensure that they comply with the requirements of this Act and of any law for the time being in force; (c) Take and retain custody of such assets declarations; and (d) Receive complaints about non-compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act.
Declaration of assets is a good idea. At least it would serve as a sign post for the net worth of a civil servant to be gauged from time to time. It will help determine when an official is living above his means which would then be the basis for relevant agencies to ask questions. The problem identified with assets declaration is that there seems to be no inbuilt mechanism for ascertaining the veracity of the assets so declared. This has led to what is now called ‘anticipatory declaration.’ This means that those public servants with proclivity toward corruption would declare assets far in excess of their current net worth. This is done with intent that the anticipatory rake-offs would equal such bogus declaration in due course.
Likewise prohibition of gifts can check the unnecessary familiarity likely to induce a civil servant to act contrary to the dignity of his/her office. But section 10 (3) of the CCBTA allows a public officer to receive gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognized by custom. So also gifts or benefits received by a public officer on any public or ceremonial occasions are not to be treated as contravention of this provision.
It is also a good law for the framers of the CCBA to have recognized that in our cultures there are certain occasions when in the life of a civil servant relatives, friends and well wishers may shower an official with gifts. It will amount to a taboo for such official to reject such gifts on such occasions. The only area we think that the law is a bit insensitive to prospective retirees is in respect of the provision in CCB which prohibits a civil servant from engaging in any business while still in service.
We submit that this prohibition needs to be qualified so that civil servants who are nearing retirement are exempted from such prohibitions. This will enable them to prepare fully for life after retirement by gradually engaging in private business during their terminal period in service. Reliance on pension, as we have seen, could be disastrous.
It seems that section 23(2) of the CCBTA is a conundrum in the face of section 308(1) (a) (b) (c) of the 1999 Constitution which protects public officers holding elective offices from both criminal and civil proceedings during their tenure of office. One would have expected that the concomitant for breaching this section should be the consequences stipulated in sub- section (a) (b) (c) of that section. But this is not so. In the case of the Federation v Alhaji Atiku Abubakar (2007) 8 NWLR (Part 1035) 1171 where the case for resolution was whether Alhaji Atiku Abubakar, the then Vice-President of the Federal Republic of Nigeria could be tried by the CCBTA. The court found that the rules of procedure of the CCBT have the trappings of a criminal court which renders it criminal court. Based on this over stretching of jurisprudence it held that the restriction on legal proceedings whether civil or criminal against any person to whom section 308 of the 1999 Constitution applies is absolute. Based on this the court declined jurisdiction to trial the then Vice-President.
It is submitted that this decision does not reflect the purport of section 23(2) (a) of the CCBTA which laid down vacation of office as necessary consequence against any official found guilty by the Code of Conduct Tribunal (CCT). This subsection is intended to apply immediately and not retrospectively. The court’s interpretation in that case seems to be too protective of political office holders and the effect of it is that it has rendered the consequences of the said subsection absurd and ludicrous. It is also submitted that the code of conduct tribunal is an administrative tribunal set up solely to impose any of the punishment under the Code of Conduct Act. It was therefore wrong for the court to elevate it to a criminal or civil court just to clip its powers. This type of judgment and, at times procrastination in proceeding against public office holders who have been indicted for corruption constitute huge hindrances to the war against corruption.
For instance, during President Olusegun Obasanjo regime allegations of false declaration of assets were made against some ex-Governors. These are former Governor of Kogi State, Prince Abubakar Audu, Victor Attah, former Governor of Akwa Ibom State, James Ibori, former Governor of Delta State, and Bola Tinubu, former Governor of Lagos State. In the case of Bola Tinubu, one Mr. John Ndupu, a legal adviser and prosecutor of the Code of Code Tribunal had in a letter dated March 27, 2003 with reference CCB/HQ/IM/007/32/98 to the then Chairman of Independent Electoral Commission (INEC), Dr. Abel Guobadia accused the former Lagos State Governor of contravening sections 3, 2(b), 9 and 6(1) of Part I, Fifth Schdule to the 1999 Constitution. Section 3 prohibits the President, Vice-President, governors and deputies, members of National Assembly and other public officers from operating bank accounts outside Nigeria.
The way these allegations were muzzled appears to be a salutary reminder that some public officers are above the law.
The Independent Corrupt Practices Commission is created as a sole corporation. The legal personality of the Commission is provided under section 3(2) of the Act which states that the Commission is a body corporate with perpetual succession and common seal and may sue and be sued in its corporate name. The import of this section is that the Commission being a persona ficta at law is vested with the powers conferred on it under the Act, in its corporate name, on behalf of the State.
The ICPC Act can be described as a fine piece of penal legislation. The Act has redefined corruption by identifying multifarious wa
ys in which it can manifest. The Act did not just focus on the perpetrators of corruption it also include its beneficiaries. It did just not limit bribery or gratification to giver and taker those who knew of it and decided to keep mute are equally guilty of the offence. It gave the Chairman of the Commission sweeping powers to pierce into any account hold by any public officer and, can order for the sequestration of such account notwithstanding that the banker is not a party of such investigation. It provided punishments for conducts which were not punishable criminally under the CCBA.
The legal personality status of the Commission guarantees the autonomy of the Commission on matters pertaining to prosecution, investigation and, counseling of public officers to shun corruption. The function of monitoring and enlightening the public about corruption and its debilitating effect on Nigeria socio-economic development is another novelty in penal legislation. Professor Odekunle extols the provisions of the Act and the creation of the Commission in glowing words as follows:
A relatively independent Commission has been created for fairly unfettered investigation and processing of cases as well as for related monitoring, advisory and public enlightenment functions. Again, some other provisions of the Act have ensured corporate liability, coverage of corrupt offences committed before the legislation comes into effect, and incorporation of existing laws (with the recurrent phrase, ‘any other law prohibiting corruption).
The powers of the Commission are such that any document examined by it is admissible in evidence in a court even though the procedure adopted in obtaining such document violates any rule of law. The coercive powers given to the Commission may be accepted in the sense that corruption is a phenomenon that requires drastic laws.
The Advance Fee Fraud and Other Related Offences Act and the Money Laundering Act are tough measures against financial and organized crimes. Both laws empower Economic and Financial Crimes Commission (EFCC) to ask questions about certain transactions. Since most funds that are to be laundered are proceeds from official corruption apart from funds from drugs, and other scam they also affords CCBA and ICPC an opportunity to wade in and periscope the nature, source and ownership of such funds. If the agencies responsible for the enforcement of these laws remain upbeat these laws can un-nerve corrupt officials because the realization that the huge sums of money in their possession arising from official corruption can be detected by relevant agencies even when such funds are in the custody of agents, or cohorts is capable of checking their propensities to stealing public fund. No wonder these days we hear of corrupt officials building houses and stashing away millions of naira inside them. The long arm of these laws can still uncover such strategy if the surveillance mechanism of EFCC is effectively utilized. These laws also put financial institutions on ‘red alert’ as they now have not only moral duty but also legal duty to shift through some transactions and ask questions in appropriate cases. The punishment for the offences are very punitive and in view of the infamy associated with imprisonment only criminal minded persons would consciously infringe these laws. The problem now with regard to curbing corruption and organized crimes in Nigeria is not the law, but enforcement should be vigorously pursued. Also in view of the disablement that accompanies some of the punishments no professional or financial institution would want to be caught on the wrong side of the law.
In view of the penchant of most people in elective offices and sensitive positions in our public offices to amass wealth and the huge amounts of money usually involved in such official corruption and scam, caution should always be exercised in appointing heads of anti-graft agencies and their staff. A person with a strong will power if appointed to head an anti-graft agency cannot be compromised no matter the allurements.
But if the beats and patrols that are to detect and investigate corrupt practices and fraudulent transactions intended to legitimize rake-offs are composed with people of low moral principles they would become part of the problem, no matter the integrity of the head. Therefore, one of the ways to strengthen the effectiveness of all anti-graft laws and their relevant agencies is to allow people with strong moral principles who are scrupulous to man them. Non-governmental organizations (NGOs) with focus in the area of corruption and, the press should continue to show genuine interest in cases of corruption, in particular, where an allegation has been made and denied on corrupt practices.
Payment of a living wage to civil servants should be given a priority with special package for the staff of anti-graft agencies. The autonomy of these agencies should also include financial autonomy. Training of their personnel is an important element that should not be neglected. If possible such training should be abroad. A special court should be created and situated in Abuja and given exclusive jurisdiction in the enforcement of all anti-graft laws. This will eliminate the pressure that trial of such cases usually put on High Court Judges of states where a former Governor of such state being prosecuted by EFCC or ICPC is a political foe of the incumbent Governor. More energy should be devoted towards curative mechanisms on the war against corruption and organized crimes. Anti-graft agencies should extend their enlightenment programmes, seminars and workshops to all nooks and cranes of the country. A cure must be found for the root causes of corruption in the country which has eaten deeply into our fabric. Let’s go back to the good old day’s slogan ‘honesty is the best policy.’