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The establishment of anti-corruption agencies
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Introduction
1While he was in power, President Olusegun Obasanjo conceived and implemented several measures aimed at advancing his anti-corruption policy, one of them being the creation of the Independent Corrupt Practices and Other Related Offences Commission (ICPC) on 29 September 2000 and the Economic and Financial Crimes Commission (EFCC) in April 2004, viewed as the single most important step taken by the President to tackle corruption. These institutions were collectively charged with the responsibility of implementing Nigeria’s numerous anti-corruption laws, including their own respective enabling Acts, the Corrupt Practices and Other Related Offences Act 2000 and the Economic and Financial Crimes Commission (Establishment) Act 2004. The institutions were expected to operate from their respective headquarters in Abuja, the nation’s capital, through a network of branch offices spread across the whole federation.
2The conception of an independent, specialised commission against corruption as an indispensable tool for fighting corruption is an idea that has proved successful in some countries (notably Hong Kong and Singapore) and is now well rooted in global academic discussions on corruption. Nevertheless, its emergence in Nigeria immediately raised at least two important sets of questions. Firstly, is the idea transferable to countries such as Nigeria, with its multiple experiences of weak or failed institutions? If yes, under what specific conditions? Secondly, given the fact that a considerable number of other institutions dealing with corruption in one form or the other were already in existence at the time these institutions were created, what role exactly were these new institutions expected to play? And what would their relationship be with the hitherto existing institutions?
3Response to the first set of questions would obviously require a detailed comparative study on the functioning of such bodies across a number of countries, which is outside the scope of this book. However, having said that, it is important to note that in setting up the ICPC and the EFCC, the Obasanjo administration appeared to have succumbed to international pressure or bought into the argument of the leading international organizations that these institutional bodies can indeed be recreated in almost any country with the right amount of political will. Thus, while responding to questions from a journalist on why the government had chosen to put in place a specialised institution to fight corruption, the Attorney General and Minister of Justice Kanu Agabi, Obasanjo’s adviser on good governance and transparency, noted:
The United Nations has for many years now been studying the problem of corruption. In the light of experience it has recommended that nations seeking to eradicate corruption should set up specialised agencies to do so. The nations that have succeeded to eradicate corruption did so by employing specialised bodies. We should be seen to be complying with the United Nations global programme for the eradication of corruption. We cannot afford to be indifferent to the views and feelings of others about our efforts at eradication of corruption while expecting them to do business with us. (The Guardian, 1 September 1999).
4The second set of questions can be adequately answered by reviewing provisions of the two enabling anti-corruption Acts, the Corrupt Practices and Other Related Offences Act 2000 and the Economic and Financial Crimes Commission (Establishment) Act 2004, which positioned these organs as the pre-eminent institutions for fighting corruption and financial crimes in Nigeria. In this chapter, we shall briefly discuss each of these institutions, with emphasis on their powers, functions, and administrative structures. The discussion will enable us to understand why these agencies were widely regarded as the driving force behind President Obasanjo’s anti-corruption crusade and to understand the political stakes that later shaped their progress.
The Independent Corrupt Practices and Other Related Offences Commission (ICPC)
5On 13 July 1999, President Olusegun Obasanjo submitted an executive bill titled Corrupt Practices and Other Related Offences Bill to the National Assembly for passage into law. This was barely six weeks after he was sworn into office. The bill aimed to outlaw all forms of corruption in the public sector and give legal backing for the creation of the ICPC to coordinate the war against corruption in Nigeria. Even though the bill was not the first of its kind in Nigeria1 and represented a sort of conformity with Nigeria’s 1999 Constitution, which provides that “the state shall abolish all corrupt practices and abuse of power” (Federal Republic of Nigeria 1999), it nevertheless raised considerable concern in several political quarters.
6The first concern came from the federal legislature, which raised at least two major objections to the anti-graft law as proposed by President Obasanjo. The first objection concerned some provisions of the bill, which the lawmakers said constituted grave violations of the fundamental rights of Nigerians as guaranteed by the 1999 Constitution. This was specifically in respect to the powers of the commission to ‘invade’ the privacy of suspects in the course of its investigation. Secondly, the National Assembly was also not comfortable with a bill which granted the President, the Vice-President, the state governors and their deputies immunity from investigation and prosecution on grounds of corruption, at least while they were in office.
7Based on these objections, the two federal legislative chambers, the Senate and the House of Representatives, refused to pass the bill in its original version, choosing instead to subject it to their revision, ejecting the clauses which they had identified as ‘anti-democratic’ or not in conformity with universally accepted democratic principles. The lawmakers also made sure that they inserted some clauses to ensure that the President, the Vice-President, state governors, and deputy state governors would not be immune to investigation (The News, 4 June 2001: 18). After stormy and lengthy debate, spanning a full year (July 1999 to June 2000), the Corrupt Practices and Other Related Offences Act 2000 was finally passed into law by the two federal lawmaking houses as constitutionally required. The law was passed on 13 June 2000. The new anti-corruption law, which effectively paved the way for the inauguration of the ICPC, was subsequently signed into law during a very elaborate ceremony by President Olusegun Obasanjo, also on 13 June 2000 (The Guardian, 9 June 2002: 37).
8The changes introduced by the National Assembly did not change the character of the ICPC law in any fundamental way. The ICPC Act still retained almost all of the offences proposed by the original executive bill. Similarly, the powers and structures of the commission, as envisaged in the original bill, remained basically unchanged. In consequence, as soon as the anti-corruption Act was signed into law, and especially after the commission was inaugurated, criticism and opposition began to mount concerning certain provisions of the Act that conferred on the body powers that were deemed to be unconstitutional or a gross violation of the principles of federalism (The Guardian, 8 October 2000: 19). Of particular interest here was the notion of ‘a public officer’, which the Act in its interpretation section defined as:
… a person employed in any capacity in the public service of the federal, state or local government, public corporations and 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 including judicial officers and serving magistrates in area/customary courts or tribunals. (Federal Republic of Nigeria 2000a).
9The implication of the above provision in the Act was to bring public officers employed in the services of the states and local governments directly under a body (as far as corruption probe is concerned) which is essentially a ‘federal agency’, being the creation of the central government. The question then arose: Can a state governor, for example, who in any case enjoys constitutional immunity against criminal prosecution while in office, be investigated and prosecuted through an agency of the federal/central government on the strength of Section 52 (27) of the Act? This section provides that when a petition against a governor or his deputy or the President or the Vice-President is received by the commission, they can be investigated, and where they are found to have contravened any section of the Act, the commission can call on the Chief Justice of the Federation to institute an independent council to investigate the indicted official, the report being then forwarded to the state House of Assembly or the National Assembly (in the case of the President and his Vice-President), which have powers to deal with the matter according to the relevant constitutional procedures (which may involve impeachment) if the grounds exist to do so.
10Some articulate sections of the Nigerian population, including leading legal luminaries, vehemently opposed this provision, which they considered a gross violation of the spirit of federalism as guaranteed by the Nigerian Constitution. Prominent among these legal experts were two foremost constitutional lawyers, Chief Rotimi Williams and Professor Ben Nwabueze, who spearheaded the opposition to sections of the anti-graft Act. Chief Williams noted that the anticorruption law “paid no regard whatsoever to the limited scope of the legislative powers conferred on the National Assembly by the Constitution”, while arguing that the National Assembly cannot make provisions for dealing with corruption throughout Nigeria (ThisDay, 6 July 2000: 4). He recalled that in the past, the attempt of the federal legislature to give itself power to set up a tribunal of inquiry during the Balewa administration (First Republic, 1960-66) was nullified by the courts, expressing the hope that the same fate would befall the anti-graft law.
11Professor Nwabueze was more forceful and critical in his arguments:
… more than being an infraction of the Constitution, it is subversive of one of the foundation pillars of Nigeria’s governmental system, federalism, whose two cardinal principles it totally disregards, namely, the principles of the autonomy of the state government vis-à-vis the federal government and the exclusiveness of the power of each over certain matters as demarcated in the Constitution. (The Guardian, 1 August 2000: 9).
12For Nwabueze, the Act “read like a Decree of the Federal Military Government, of which General Obasanjo was head from 1976-1979, a government with powers unencumbered and unlimited by the autonomy of the State governments, by a federal system of division of powers or by a supreme constitution” (ibid.). In the opinion of the learned scholar, therefore, “President Obasanjo’s anticorruption crusade deserves our applause and full support, but not at the expense of the cardinal principles of our federal system on which depends, to a considerable extent, the stability and unity of the country” (ibid.).
13It was against the background of these harsh criticisms, especially from renowned legal experts, that fears were raised about the possibility that such legal loopholes or shortcomings might deadlock the application of the Act and, by extension, the operations of the anti-graft commission. Fears were further raised when, in a further challenge to the powers of the commission, Ondo State, a state in southwest Nigeria, led eight other states in mounting a challenge in early 2000 in Nigeria’s highest court, the Supreme Court, challenging the constitutional powers of the federal government to extend its anti-corruption dragnet to Ondo State, or to any other state for that matter. At the Supreme Court, Ondo State and the other allied states, through their lawyer, Chief Rotimi Williams, raised two fundamental questions for determination before the court. One was whether or not the National Assembly can competently enact laws in furtherance of, or in effectuation of, Section 13(5) by virtue of Item 60 (a) of Part One of the exclusive legislative list, in the second schedule to the 1999 Constitution. The second was whether or not the provisions of the Act (the anti-graft law of 2000) had impeded, encroached upon, or removed the legal rights of the plaintiffs, and if so, whether the provisions of the Act were thereby rendered unconstitutional (The Guardian, 9 June 2000: 37).
14This legal challenge created considerable problems for the ICPC, as many state governments refused to recognise the institution’s existence. Ondo State was, of course, one of them. The state had earlier commenced legal proceedings against one of its top functionaries, accused of defrauding the state. The accused, a commissioner (equivalent to a cabinet minister), tried at the Ondo State Chief Magistrate Court, was alleged to have cheated the state by inflating a contract from N12 million to N35 million. And barely three days after the case was reported in the media, another senior official of the state government was indicted for corrupt practices and accused of paving the way for the grounding of the fleet of buses of the state-owned Owena Mass Transport Corporation (OMTC). The managing director of the transport corporation was subsequently ordered to return N8.7 million to the government’s coffers, another full-time director of the company was ordered to refund N230,000, and yet another official was ordered to refund N100,000 (The Punch, 2 September 2001: 18). Surprisingly, when the ICPC expressed interest in the case, in line with its legal responsibilities as spelt out in its enabling law, the Ondo State government refused to transfer the accused commissioner’s case file for further investigations. In fact, while the legal tussle at the Supreme Court lasted, Ondo State government refused to cooperate with the commission and even went ahead to bar the anti-graft agency from operating in Ondo State.
15This kind of open hostility towards the ICPC also came from other states. Immediately after he was sworn into office as chairman of the ICPC, Justice Mustapha Akanbi sent letters to each of the 36 state governors to inform them about the operations of the commission and solicit their co-operation in this regard. Some of the state governments in their reply “said the commission was an unconstitutional body”, while others promised to respond to the commission’s letter in due course but never did (Vanguard, 24 May 2002: 16). Thus, even if the critics and opponents of the anti-graft law were not rejecting the law in its entirety or opposing the war against corruption in the country under the Fourth Republic, their actions and utterances were enough to throw a spanner in the works of the commission, which became moribund, so to speak, while the legal tussle lasted.
16On 7 June 2002 the Supreme Court, in a highly celebrated and landmark ruling, delivered its verdict in favour of the ICPC, thereby ensuring that the commission made a triumphant exit from the legal shackles which were threatening to paralyse the war against corruption. After reviewing the arguments of the proponents and antagonists, as it were, the Supreme Court ruled that the anticorruption Act was validly enacted by the National Assembly. Applying the Blue Pencil Rule, it also ruled that only offending sections, viz. Section 26(3) and Section 35 of the Act, were invalidated. Section 26(3) prescribes a time frame within which all prosecution of criminal offences under the Act must be concluded. The section was struck down because it “infringes on the principle of separation of powers and therefore is unconstitutional” (The Guardian, 18 June 2002: 76). Section 35 was struck down because it empowers the anti-graft commission to arrest and detain any person who failed to obey a summons directed to him “until the person complies with the Summons” (ibid.). This Section implies that a person may be detained indefinitely, contrary to the provisions of the 1999 Constitution. The authority of the Attorney General of the Federation or any person authorised by the anti-corruption commission to lawfully initiate or authorise the initiation of criminal proceedings in any court in Ondo State (a fortiori any part of the Federation), in respect of offences created by the Act, was also upheld. By this ruling, the court sifted the good from the bad.
17Armed with this final and conclusive judgement in its favour, the anti-corruption commission was now expected to forge full-speed ahead in its war to rid the country of corrupt practices.
18The powers and resources provided to the ICPC to achieve its mission deserve to be highlighted in some detail.
The administrative structures of the ICPC
19The ICPC was inaugurated on 29 September 2001, with Hon. Justice Mustapha Akanbi, a well-known jurist and former Appeal Court President, as chairman. Specifically, Section 3(4) of its enabling Act provides that “the Chairman shall be a person who has held or is qualified to hold office as a judge of a superior court of record in Nigeria” (Federal Republic of Nigeria 2000a). Similarly, Section 4(6) provides for the position of a Secretary appointed by the President, whose duty is to keep the records of the commission, and take care of the general administration and control of staff. The commission also has as members another 12 men and women of no less integrity, all nominated by the President, 2 from each of the 6 geo-political zones in the country. The commission has its administrative headquarters in Abuja, the federal capital, and was expected to establish branch offices in all the 36 states of the federation in due course. Under Section 3(12) of the Act, the commission was conferred with the powers to appoint, dismiss, and exercise disciplinary control over its staff.
20Being a new organization which was greeted with public pressure from its immediate take-off, the commission was faced with some very tough structural limitations upon its birth. These included the vital questions of how and from where to pool its foundation staff and the issue of office and residential accommodation of its key staff. The commission therefore had to commence operations initially with a skeletal staff deployed from, among others, the Offices of the Secretary to the Government of the Federation (SGF), the Head of Service, the Police, and the State Security Service. Lawyers or prosecutors were also seconded from relevant institutions to join the commission to enable it commence operations. The almost unavoidable dependence on the services of staff of some of these institutions, which had been grossly tainted with corruption in the past—especially the Nigerian Police—became a source of concern for many people. However, in the years that followed, the commission moved to effect the recruitment of its own workforce, based on its needs and the level of resources available to it. In one such exercise, the commission engaged consultants from KPMG, one of the world’s most renowned management firms, to recruit its own personnel in 2001.
21Office and residential accommodation were other challenges which the ICPC confronted upon its birth in 2000. The commission first began its operation from a temporary site, the boardroom of the defunct Family Economic Advancement Programme (FEAP), before gradually moving to take over the offices of the defunct Petroleum Trust Fund (PTF) (Akambi 2001). In a similar vein, members of the commission had to reside in hotels for some time before the commission later moved to secure rented residential accommodation for the chairman and members of the ICPC’s board, as no government quarters were available when it began its work. The absence of a well-equipped office and residential accommodation for the top echelon of such a very important commission, at inception, is an indication of the level of official preparedness. As for logistics, the commission began with some few refurbished vehicles, inherited from the defunct PTF. However, the ICPC later acquired its own vehicles for the use of members and staff of the commission.
Powers and responsibilities of the ICPC
22The powers and responsibilities of the commission, as defined by the enabling law—in this case, The Corrupt Practices and Other Related Offences Act 2000—are far-reaching. Before the enactment of the 2000 Act, there were other laws which dealt with corrupt practices in the country. These laws included the Criminal Code (which is applicable in the southern states) and the Penal Code (which is applicable in the northern states), the Recovery of Public Property (Special Military Tribunal Act Cap. 389, Laws of the Federation of Nigeria 1990, as amended in 1999), the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree 1994 (as amended in 1999), and the Code of Conduct Bureau and Tribunal Act, Cap. 56, Laws of the Federation of Nigeria 1990. However, as varied as these laws were, they were believed to be outdated, to the extent that there are now modern methods of corruption used by the perpetrators of corruption which were not contemplated by the lawmakers at the time the older statutes were enacted. Detecting these modern methods of corruption, it was thought, required state-of-the-art legislation. Furthermore, among other issues, these statutes were said to be scattered rather than grouped together conveniently and were not comprehensive (Onuogu 2002). The anti-corruption Act of 2000, therefore, was able to bring about some orderliness in the laws, putting them in a more comprehensive document, and to also fill the lacuna created by the inadequacy of the existing laws.
23But what exactly does the Act say about the scope of the ICPC’s powers? And how sufficient are these powers? It will not be necessary to examine every aspect of the Act here; we will attempt to highlight some of the most important provisions only, with emphasis on those provisions that touch on the powers and responsibilities of the commission. To begin with, the ICPC Act’s definition of corruption, as we have noted, “includes bribery, fraud and other related offences”. It also defines gratification, under Section 8, to mean “money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, or any other similar advantage, given or promised to any person with intent to influence such a person in the performance or non-performance of his duties”.2 The aim of these definitions is obviously to catch within the Act’s ambit all forms of dishonesty related to corruption and allied offences. The interpretation section is also important because it guides the court in its interpretation of certain words and phrases used in the Act, while assisting the commission in determining what conduct constitutes corrupt practice.
24The powers and responsibilities of the commission are found in Sections 6(a) to (f) of the Act, and they include the following: To receive and investigate complaints from members of the public on allegations of corrupt malpractices and, in appropriate cases, prosecute the offenders; to examine the practices, systems, and procedures of public bodies, and where such systems aid corruption, to direct and supervise their review; and to instruct, advise, and assist any officer, agency, or parastatals on the ways fraud or corruption may be eliminated or minimised by them. The ICPC was also empowered to advise heads of public bodies of any changes in practices, systems, or procedures—compatible with the effective discharge of the duties of public bodies—that would reduce the likelihood or incidence of bribery, corruption, and related offences, educate the public on and against bribery, corruption, and related offences, and enlist and foster public support in combating corruption (Federal Republic of Nigeria 2000a).
25The ICPC, as we have said, was also to hire its own staff and organize them in the manner it deemed fit. To achieve this goal, the commission created various departments and committees, which were charged with the responsibilities of carrying out different aspects of its duties. For instance, pursuant to Section 6 of the Act, the board of the commission was organized into three general committees. The first dealt with investigation and prosecution; the second dealt with the study of the systems, practices, and procedures at parastatals, public institutions, and the like; and the third took charge of public enlightenment and education. Each committee has a member of the commission as its chairman. The chairman of the ICPC was the chairman of the investigation and prosecution committee during the period under review (Tell Magazine, 3 June 2002: 33).
26Furthermore, the Act in Sections 8-26 created a wide range of punishments for offences which include acceptance of gratification by an official, corrupt offers to public officers (by private individuals, for example), corrupt demand by persons, and offences related to corrupt and fraudulent acquisition of property. Others are penalties for offences committed through postal systems, deliberate frustration of investigation by the commission, making false statement or returns, gratification by and through agents, bribery of public officers, the offence of using office or position for gratification, bribery in relation to auction, bribery for providing assistance in regard to contracts, failure to report bribery transactions, dealing with, using, holding, receiving, or concealing gratification, making of statements which are intended to mislead the commission, and conspiracy. The penalties for these offences ranged between one and ten years’ imprisonment, with the option of a fine.
27In order to eliminate all forms of corruption, especially the modern methods of perpetration, and render the commission and its fight against corruption more effective, the Act also contained provisions or unique clauses: One provision limits the time within which offences of corruption can be tried to 90 working days, with a proviso to extend the time when good grounds exist (Section 26(3));3 another provides that special judges of the High Court be designated to try only corruption cases (Section 26(2) and Section 61(3)), in order to accelerate the speed of trials, bearing in mind the snail speed of the Nigerian judicial system; another provision requires the protection of witnesses and their evidence (Section 64). Others are the clauses allowing for presumption in certain cases, notably in connection with giving or receiving of gratification, which can be presumed to have occurred for a corrupt motive once it is proved that it had been given or received in the first place (Sections 53 and 54); a clause stating that evidence shall not be admissible to show that gratification is customary in any profession, trade, vocation, or calling, or on a social occasion (Section 60). There were also provisions which provided for punishment for the following: Inflation of the price of goods or services above the prevailing market price or professional standard (Section 22(3)); the award of contracts without budgetary provisions, approvals, and cash backing (Section 22(4)); the transfer or the spending of money for a particular project or service on another project (Section 22(5)); and, of course, the failure to report bribery transactions (Section 23(3)).
28Sections 27 to 42 of the Act grant the commission wide powers to perform and enforce these provisions, including the powers to investigate, search, seize (any property which is the subject of investigation), and arrest (any suspect), if it deems this to be necessary in its investigations. These powers may be exercised upon the receipt of report(s) made orally or in writing by any member of the public to an officer of the commission. In practice, the investigation department is assigned the responsibility to investigate any such report, and after investigation, cases are referred to the prosecution department if there are sufficient facts to prosecute. Officers of the commission investigating cases enjoy some immunity and are conferred with special powers under Section 5(1) of the Act, which provides that “(s)ubject to the provisions of this Act, an officer of the commission when investigating or prosecuting a case of corruption shall have all the powers and immunities of a police officer under the Police Act and other laws conferring power on the police, or empowering and protecting law enforcement agent”.
29In theory, prosecution of an offence under the ICPC Act is supposed to be initiated by the Attorney General of the Federation or any person or authority to whom he delegates this authority (Section 26 (2)). However, Section 61(1) of the Act also states that every prosecution for an offence under the Act or any other law prohibiting bribery and corruption will be deemed to be performed with the consent of the Attorney General.
30The comprehensive nature of the Act—that is, the wide scope of offences created under it—appeared to be intended to bring within its ambit all forms of dishonesty related to corruption and allied offences, taking into consideration Nigeria’s past experiences. Similarly, the wide powers granted to the commission by the Act seemed not to be a mere accident, but a deliberate intention to make the commission not just a dog that barks, but also one that bites. Indeed, in the context of a legal framework for combating corruption, there appeared to be adequately worded provisions in the Act for tackling most aspects of corruption pervading public and business life in Nigeria. Nevertheless, as wide as its powers may appear to be on the surface, the ICPC Act—and as a consequence, the ICPC itself—faced at least two potential challenges which became increasingly obvious as time went on.
31The first problem was that the ICPC was precluded from investigating cases that occurred before 13 June 2000. In other words, because the anti-corruption Act was signed into law on 13 June 2000, any offence of corruption that was committed before that date cannot be prosecuted by the commission. According to Section 61(2) of the Act, such corrupt acts could only be prosecuted by the already existing anti-crime bodies.4 Indeed, pursuant to this legal provision, several cases of corruption reported to the ICPC were referred to the Federal Director of Public Prosecutions and his counterparts in the individual Nigerian states or to the police, as the case may be. This legal provision not only contrasted with best practices around the world,5 it made little sense in Nigeria. The commission’s inability to investigate and prosecute former officials became a major source of legitimacy crisis for it. A second loophole was that the ICPC law had deliberately excluded several criminal acts taking place outside the public sector (bank frauds, money laundering, tax fraud, etc.), which most Nigerians considered to be corruption.
32Given these challenges, it was not surprising that the Obasanjo government soon came under intense public criticism and diplomatic pressure, notably from the Financial Action Task Force (FATF),6 which threatened to impose sanctions if perceived short-comings in Nigeria’s anti-corruption legislation were not corrected (Abdullahi 2004). This was the basis for the establishment of the EFCC, which subsequently became the dominant anti-graft body in Nigeria.
The Economic and Financial Crimes Commission (EFCC)
33The EFCC was first proposed by a 2002 law, the Economic and Financial Crimes Act 2002,7 but came into existence only on 11 April 2003.8 Unlike the ICPC, the birth of the EFCC witnessed little or no controversy. Although its enabling Act contained far more ‘draconian’ powers than those of the ICPC, its passage in the National Assembly still proceeded almost without any political challenge. There are two explanations for this paradoxical situation. Firstly, being legislation that was more or less imposed by powerful international interests, it could not have faced the same kind of political opposition or legislative scrutiny which the ICPC Act attracted. Secondly, and perhaps more importantly, the EFCC bill was not considered a threat by Nigeria’s political class, who erroneously interpreted it as a weapon against fraudsters in the banking industry or individuals specialising in advance-fee fraud (commonly known as “419” in Nigeria).9 It was in an open admission of this fact that a former Speaker of Nigeria’s lower legislative house, the House of Representatives, Ghali Umar Na’abba, said that the “EFCC was meant to fight 419 and money laundering. It was never intended to be an institution to fight corruption in public places. That duty is for ICPC” (ThisDay, 6 February 2006). Thus, right from the beginning, the EFCC enjoyed far higher financial and political support from the executive arm of government and indeed the international community. This level of support translated into a more robust administrative structure and a confident leadership willing to step on toes on some occasions.
Powers and responsibilities of the EFCC
34Just like the ICPC, the powers and responsibilities of the EFCC are contained in different sections of its enabling Act. According to the Act, the commission is specifically charged with the responsibility of conducting investigations into crimes of a financial and economic nature,10 such as 419, money laundering, counterfeiting, capital and market fraud, cyber crimes, credit-card frauds, contract frauds, and terrorism and terrorism financing, as outlined in Section 6. The commission can equally enforce other previously existing legislation touching on economic and financial crimes.11 The EFCC is also enjoined in Section 6 of the Act to take all necessary measures to prevent and eradicate economic and financial crimes in Nigeria. This will include identifying, monitoring, freezing, or confiscating proceeds (funds and properties) from criminal activities such as terrorism and financial and economic crimes, and collaborating with similar institutions abroad, especially in the area of research, investigations, exchanges of personnel, international mutual legal assistance (for extradition), and prosecutions. Similarly, the EFCC is expected to promote the coordination of, and maintain close ties with, all Nigerian institutions charged with investigating economic and financial crimes, such as the Police, Ministry of Justice, Customs, Immigration, Prisons, Central Bank of Nigeria, and National Drug Law Enforcement Agency (NDLEA), to mention just a few. Another important task assigned to the commission is to educate and enlighten the general public and solicit their support for the war against economic and financial crimes.
35Apart from its powers to coordinate all the other regulatory and security agencies involved in the eradication of economic and financial crimes, which permits it to assume a sort of ‘position of superiority’ relative to the concerned institutions, the EFCC differs from the ICPC in at least two important respects relative to the scope of its powers. In the first place, it did not misinterpret its liberty to commence investigations and even prosecutions—if and when it had reason to suspect that an individual or institution had committed or had infringed upon any of the economic and financial crimes’ laws—by waiting to receive a formal petition, as was the case with the ICPC. This meant that the EFCC was able to act in a more proactive manner to bring corrupt individuals to book before they had sufficient time to cover their tracks. The second point is that the powers of the EFCC are retroactive, in the sense that offences committed in the past (before the establishment of the commission) can be investigated, and any person suspected of illegal enrichment or illicit financial transaction and—better still—any person possessing unexplained wealth relative to his legitimate income can be brought to court. Thirdly, the powers of the EFCC cover both the private and the public sectors. These wide powers were complemented by fairly broad administrative structures.
The administrative structures of the EFCC
36In comparison with other institutions charged with eradicating corruption and crime, (ICPC, Code of Conduct Bureau, NDLEA, NAFDAC, etc.) the EFCC distinguishes itself not only by the extensive scope of its powers but also by its inclusive administrative structures. As is the case with the ICPC, members of the board of the EFCC, including its chairman (an executive chairman), must be very experienced personalities with impeccable character, nominated by the President and then confirmed by the Senate. However, apart from the EFCC chairman, who must possess at least 15 years of professional experience acquired in a security organization, the other members of the commission must include the heads, or their representatives, of the Central Bank of Nigeria (CBN) and the Ministries of Foreign Affairs, Finance, and Justice. Others included are from the NDLEA, National Intelligence Agency (NIA), State Security Services (SSS), Corporate Affairs Commission (CAC), Securities and Exchange Commission of Nigeria (SEC), Nigerian Deposit Insurance Corporation (NDIC), Nigerian Insurance Commission (NIC), Nigerian Postal Service (NPS), National Communications Commission (NCC), Nigerian Customs Service, Immigration, and the Nigerian Police Force.
37The chairman is assisted by a secretary general, who is the head of administration, and a team of six directors in charge of each of its departments: Organizational Support, Financial Crimes Intelligence, Advance-Fee Fraud and Other Economic Crimes, Intelligence, Enforcement and General Operations, and Prosecutions and Legal Council and Training School. The EFCC chairman is also placed in charge of a large bureaucratic structure, which in 2006 included some 800 personnel. The figure was about 500 during its first year of existence. The EFCC’s staff profile was thus better than that at the ICPC. These permanent employees were housed in its imposing administrative headquarters in the federal capital, Abuja, and regional offices (in Lagos and Port Harcourt) which became functional in 2005.
38The size and effectiveness of any organization depends largely on the level of funding. While comprehensive and comparative data on the finances of both the EFCC and the ICPC are unavailable, anecdotal evidence points to a superior level of finance for the EFCC. According to our data, the EFCC received over N700 million ($5 million) in public subvention during its first year and N1.1 billion ($8 million) in its second (ThisDay, 4 June 2005). By contrast, the ICPC received only about N500 million ($3 million) on average between 2000 and 2004. What accounted for this huge gap in funding between the EFCC and the ICPC?
39The different approaches to sourcing for funds by the two organizations were partly responsible for this wide gap in funding. While the EFCC enthusiastically welcomed funding from a variety of local (usually public) and international institutions, the ICPC on the other hand accepted assistance only from international organizations, which must be in non-monetary form (for example, training of ICPC personnel, supply of equipment, and payment for ICPC programmes). According to ICPC officials, this is to protect the integrity of the organization and avoid putting it in an awkward position when the anti-graft body is called upon to investigate an official of such donor organizations.12 Similarly, outside the provision that required the National Assembly to appropriate funds for its operations, the ICPC Act is virtually silent on the question of other sources of funding for the commission. On the other hand, Section 35(2) of the EFCC Act provides that in addition to statutory allocation to be approved by the National Assembly, “the Commission may accept gifts of land, money or other property whether within or outside Nigeria upon such terms and conditions, if any, as may be specified by the person or organization making the gift provided that the terms and conditions are not contrary to the objectives and functions of the Commission”.
Conclusion
40From all indications, President Obasanjo considered the setting up of new anticorruption commissions as key to actualising his goal of fighting corruption in Nigeria. This was demonstrated by his establishing first the ICPC and then the EFCC, notwithstanding widespread political opposition. These two commissions, however, were not endowed with the same levels of legal powers and administrative structures, as a result of the different circumstances of their birth and funding. As should be expected, these differences in level of funding, administrative structures, and scope of powers had substantial impacts on the achievements of these two institutions. But before looking at the performances of these bodies, let us first examine the other reform measures put in place by the Obasanjo government to fight corrupt practices.
Notes de bas de page
1 In 1975 a similar law, known as the Corrupt Practices Decree (No. 38) 1975, was adopted by the Murtala Mohammed military regime. This legislation, which also created an anti-corruption agency, the Corrupt Practices Investigation Bureau (CPIB), was subsequently replaced by the Code of Conduct Act of 1979. The latter Act envisaged the establishment of two bureaucratic institutions, the Code of Conduct Bureau and the Code of Conduct Tribunal, which were its enforcement arms. In addition, in 1990 a presidential committee on corruption and economic crimes set up by the Babangida administration prepared a draft bill on corruption. The bill, among other items, called for the establishment of a Corrupt Practices Tribunal. This bill, however, was not implemented by the regime.
2 This provision was often interpreted by the ICPC to mean that it was not empowered to initiate any investigation on mere suspicion of corruption. In other words, even if it has sufficient evidence indicating that an offence of corruption has been committed, investigation and prosecution will have to wait until a complaint is received from a member of the public. The consequence of this interpretation was that individuals or officials who were known to be living above their legitimate incomes continued to enjoy their loot, to the irritation of members of the public. The commission often justified its refusal to investigate such cases on the basis that it had not received any petition against these individuals.
3 This provision was later declared null and void by the Supreme Court of Nigeria, which reasoned that it encroached on the powers of the judiciary.
4 Section 61 (2) of the ICPC Act 2000 states that “(w)ithout prejudice to any other laws prohibiting bribery, corruption, fraud or any other related offences by public officers or other persons, a public officer or any other person may be prosecuted by the appropriate authority for an offence of bribery, corruption, fraud or any other related offences committed by such public officer or other person contrary to any laws in force before or after the coming into effect of this Act and nothing in this Act shall be construed to derogate from or undermine the right or authority of any person or authority to prosecute offenders under any other laws”. ICPC Act 2000 op cit.
5 In Hong Kong and Singapore, for instance, anti-corruption agencies can, under specific circumstances, investigate and prosecute cases committed even before the establishment of an anti-corruption body.
6 The Financial Action Task Force (FATF) is an inter-governmental body established to promote and enforce national and international policies and legislation designed to combat money laundering. Its headquarters in located in Paris.
7 This Act was subsequently replaced by the Economic and Financial Crimes (Establishment) Act 2004.
8 Before this date, the government’s war against economic and financial crimes was mainly conducted by an ad-hoc body known as the National Committee on Economic and Financial Crimes.
9 419 is a financial crime which derives its name from Section 419 of Nigeria’s criminal code, which criminalises any act designed to obtain money under false pretext. Also known as advance-fee fraud or confidence trick, 419 is a scam in which the target is usually persuaded, through emails or any other tool of communication, to advance sums of money in the hope of realizing a significantly larger gain.
10 See Section 46 of the EFCC Act, 2004 op cit.
11 Specifically, the Act in Section 7 (2) states that “in addition to the powers conferred on the Commission by this Act, the Commission shall be the coordinating agency for the enforcement of the provisions of the Money Laundering Act of 2004; 2003 No. 7. 1995 No. 13; the Advance Fee Fraud and Other Related Offences Act 1995; the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Act, as amended; the Banks and Other Financial Institutions Act 1991, as amended; Miscellaneous Offences Act; and any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code”. EFCC Act 2004 op cit.
12 This information was provided during my interview with Mr Mike Sowe, ICPC’s Head of Public Enlightenment, in Abuja in November 2004.

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