An appraisal of the Nigerian Corrupt Practices and Other Related Offences Act 2000 as an instrument against financial crimes
| DOI | https://doi.org/10.1108/13590790310808853 |
| Date | 01 July 2003 |
| Pages | 275-294 |
| Published date | 01 July 2003 |
| Author | Andrew I. Chukwuemerie |
| Subject Matter | Accounting & finance |
An Appraisal of the Nigerian Corrupt Practices and
Other Related Oences Act 2000 as an Instrument
against Financial Crimes
Andrew I. Chukwuemerie
INTRODUCTION
Like some other developing countries, Nigeria is reel-
ing under the burden of corruption. In fact, prior to
the inauguration of the current civilian administra-
tion, corruption and other crimes such as money
laundering and advance fee fraud had graduated to
monstrous dimensions in the country and among
some of its citizens resident abroad. The country
was rated by Transparency International as the
most corrupt in the world.
1
Several foreign investors
had also started disinvesting from the country because
corruption and the near-collapse of the social infra-
structure had made the cost of doing business in the
country extremely high.
2
They found that the
amount spent on `public relations', a euphemism
for bribery, was growing progressively higher each
year and was in fact getting higher than the actual
cost of production of some of their products.
It was against this backdrop that the current
government took power and quickly drafted an
anti-corruption bill, which the National Assembly
passed into law as the Corrupt Practices and Other
Related Oences Act 2000. The passage of the Act
into law was a monumental and revolutionary step
in the bid to put things right at home and recover
the country from its debilitating pariah status in the
comity of nations. It was a classic example of neces-
sary and eective social engineering through the
law. The Act does not only contain several provisions
that are completely novel, at least in Africa; it has
numerous other commendable provisions which, if
properly implemented, would go a long way
towards stemming the tide of corruption and other
related ®nancial crimes in Nigeria.
The Act and the Independent Corrupt Practices
and Other Related Oences Commission (`the Com-
mission') set up to administer or enforce it are already
enjoying tremendous goodwill among ordinary
Nigerians who are giving their best to ensure that
the ®ght against corruption succeeds. In fact, when
recently the Supreme Court upheld the Act as consti-
tutional and subsisting,
3
the judgment was received
with great joy nationwide as a necessary ®llip in the
®ght against corruption, which ®ght the Act and
the Commission represent. Not only so, the judg-
ment helped the country in striking a very delicate
but necessary balance between the pure theoretical
principles of federalism and pressing social and legal
needs thrown up by the dynamics of the Nigerian
union. It met the need to have such a law, made by
the National Assembly, apply in each of the federat-
ing states and to public ocers in all tiers of govern-
ment so as to achieve uniformity and ensure thereby
that as the war against corruption rages in federal
departments and organs or in some parts of the coun-
try, no other part of the country would make itself a
safe haven for corrupt people and their practices.
Indeed in several ways the Act, though not perfectly
crafted, is a good piece of legislation, which could be
a good guide to other countries burdened by corrup-
tion and who are in search of a good legal framework
for ®ghting the menace. It can also be a good guide to
federations needing to strike a balance between the
principles of federalism and certain pressing social
and legal needs which the inventors of the doctrines
of federalism could not have foreseen.
These things, amongst others, necessitate a close
examination of the Act. The paper examines the
workability or otherwise of the Act with respect to
stemming the tide of corruption and other ®nancial
crimes covered by it. It is intended to see whether
the aim of making the business scene in the country
corruption-free and conducive for decent investors
Ð foreign and local Ð can indeed be realised
through the Act. In doing so it examines certain pro-
blems for which solutions must be found for the Act
to be fully successful. It points out how some of the
provisions should be better than they presently are
and shows that the problems can be solved through
a liberal interpretation of the Act by the courts. It is
hoped that such parts of the discussion will be
useful to countries that may be contemplating the
enactment of statutes similar to the Act.
The paper ®rst examines the structure of the Act,
Page 275
Journal of Financial Crime Ð Vol. 10 No. 3
Journal of Financial Crime
Vol.10,No. 3,2003,pp. 275 ±294
#HenryStewart Publications
ISSN 1359-0790
the nature and powers of the Commission, the crimes
provided against in the Act and the framework for its
faithful and fruitful implementation or execution. It
goes on to highlight some other important provisions
of the Act. In each of these areas the shortcomings of
the Act are analysed and solutions proered. In addi-
tion, however, there is a section on a summary critique
of the Act. The paper examines the success or
otherwise of the war against corruption and related
crimes so far.
THE STRUCTURE OF THE ACT
The Act is one of the very few legislations of its kind
in Nigeria Ð and indeedmo st ofAfrica Ð dedica ted
wholly or mainly to curbing corruption and related
crimes.
4
It adopts an expansive approach to the
issue and de®nes corruption at s. 2 simply by saying
that it `includes bribery, fraud and other related
oences'. Hitherto corruption had been understood
mostly in the light of bribery. With the new de®ni-
tion it seems rather obvious that every ®nancial or
economic crime that presently plagues the country
is covered under `other related oences' because
they would be ejusdem generis to bribery and fraud.
Therefore perpetrators of advance fee fraud, money
laundering of all types and all such crimes Ð ®nancial
or otherwise Ð are covered. The investigation and
prosecution of such crimes are placed squarely in
the hands of the Commission, rather than the
police, who have failed Nigerians and non-Nigerians
operating in the country. It is also necessary to point
out right away that every form of fraud (including
Internet fraud), as far as jurisdiction for investigation
and prosecution lies with the Nigerian authorities, is
covered.
The Act has 71 sections broken into 8 major parts or
groups of sections. While sections 1 and 2 deal with
commencement and de®nitions, Part 2 (ss. 3 ±7)
deals with the composition and powers of the Com-
mission. Part 3 deals with substantive oences and
penalties. Part 4 (ss. 27± 42) deals with the investiga-
tion of crimes, searches, seizure of goods and arrest
of oenders, while Part 5 deals with the powers and
duties of the Commission's Chairman in particular
circumstances. Part 6 covering ss. 53± 60 deals with
evidence, while Part 7 deals with the prosecution
and trial of oences and the last sections, 65 ±73,
with general issues.
The Commission
One of the most inspiring features of the Act and of
the war against corruption and related ®nancial
crimes in Nigeria is the creation of the Commission
at s. 3(1). It is, under s. 3(2), a body corporate with
perpetual succession and a common seal, and can
both sue and be sued in its own name. Its membership
consists of a chairman and 12 other members
appointed in such a manner as to ensure an even
spread across the country.
5
Under subsection 3(3),
the members are not only representatives of the var-
ious strata of society but are also people with the
requisite training and experience. They include a
retired police ocer not below the rank of a Police
Commissioner,
6
a legal practitioner of at least ten
years' post-call experience,
7
a retired judge of a super-
ior court,
8
a retired public servant not lower than the
rank of director, a woman, a young person not less
than 21 years and a chartered accountant. The chair-
man, who, like other members, must be a person of
proven integrity,
9
must also be a person who has
held or is quali®ed to hold oce as a judge of a super-
ior court
10
and his tenure is secure for ®ve years
which is renewable once.
11
Section 3(4) confers inde-
pendence on the Commission by providing that in
the discharge of its functions under the Act, it will
`not be subject to the direction or control of any
other person or authority'. This means that neither
the executive, legislative or even judicial arm of the
government or indeed any member of society, no
matter how in¯uential, can in¯uence the Commission
in its work. This is most desirable, since the Commis-
sion can investigate every single person or institution
in the country. The position is also complemented by
s. 3(8), which elevates the oces of chairman and
members to those of judicial ocers with respect to
removal from oce. To ensure that not even the Pre-
sident who appointed them or any other President
can remove them for no good reason or subject
them to subtle pressure, the subsection provides that
the chairman or a member may be removed from
oce by the President but only when `acting on an
address supported by two-thirds majority of the
Senate praying that he be removed for inability to
discharge the functions of his oce (whether arising
from in®rmity of mind or body or any other cause)
or for misconduct'. It is similar to s. 292(1)(a) and
(b) of the 1999 Constitution which prescribes the
conditions where a judicial ocer can be removed,
which was also the position under s. 256 of the 1979
Constitution.
12
The serious diculty in removing a
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Chukwuemerie
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