INTRODUCTION

1Over the last couple of years1, Nigeria, Africa’s largest nation, gained unprecedented global attention on account of its unenviable record in corruption2, notwithstanding the fact that its current leader, President Olusegun Obansanjo, ironically a one time President of Transparency International’s board of directors, had at the inception of his administration in 1999, initiated a state of the art anti-corruption law paving way for the establishment of an independent anticorruption commission with awesome powers to fight corruption. The effects of corruption on the image and development of Nigeria need not be overemphasized. Notwithstanding its huge potentials (population and resources), the country lie prostrate today owning largely to decades of plunder by successive governments3. Nigeria’s inability to achieve enduring political stability is also not unconnected to the damaging effects of corruption, which contirtues to undermine the legitimacy of political leaders and public institutions, and thus the capacity of the state to implement development programmes4.

2Following a successful return to democratic rule on May 29, 1999, there was immense domestic and international pressure on the new administration to fight corruption. These pressures explain partly, why a host of new policy and institutional measures are been put in place to fight corruption. One of the most significant anti-corruption measures already taken is the establishment of the Independent Corrupt Practices and Other Related Offences Commission (ICPC), on September 29, 2000. ICPC, the major tool with which the present administration in Nigeria hopes to combat corruption has however suffered severe set back in its operations, due largely to the néo-patrimonial orientation of the Nigerian political class, inadequate structures and a weak judicial system.

The concept of corruption and its manisfestations in Nigeria

3Despite the fact that corruption has attracted global attention in recent times, a generally accepted definition of the concept remains elusive. For the purpose of this article, however, we will, following Khan, define corruption as

any act which deviates from the rules of conduct, including normative values, governing the actions of some one in a position of authority or trust, whether in the private or public domain, because of private regarding motives, (that is non public or general) such as wealth, power, status etc5.

4Implicit in the above definition is the assumption that all corrupt acts are motivated by the desire to misuse the instrumentality of office or one’s position in pursuit of private regarding interests, which may or may not be material, in violation of existing rules or norms.

5The various manifestations of corruption in Nigeria are well documented in the numerous reports of commissions of enquiry established by successive administrations. The Forster-Sulton Tribunal (1956) and the Justice Coker Commission (1962), highlighted how politicians of the First Republic used their privileged positions to divert public resources away from state corporations and companies to their various political parties. These politicians were also known to have engaged in embezzlement and misappropriation of public funds, bribery, nepotism, extortion, electoral frauds and other forms of corrupt behaviours6. Notwithstanding the fact that corruption during that era was largely restricted to the political class, it greatly contributed to the collapse of the Republic following Nigeria’s first military coup on January 15, 19677.

6During the 70’s, the import licensing system was widely exploited by government officials and their friends in the business sectors for self enrichment8. Contracts for public works were frequently inflated, while civil servants rampantly engaged many forms of bribery and extortion. In 1976, 10 out of 12 of the then state military governors were dismissed from office and the military, haven been found guilty of grossly abusing their offices by a judicial probe panel9. The probe by the Mohammed regime (1975/76) also extended to other key state institutions, including the judiciary, police, civil service and parastatals, and even universities. culminating in the purge of over 10,000 officials, many of them on corruption related offences10.

7With the return of electoral politics in 1979, under the Second Republic (1979-83), large scale and high level fraud, diversion, embezzlement and misappropriation of public funds either to finance political parties or for self enrichment, and more brazen inflation of state contracts, nepotism, ostentatious display of ill-gotten wealth, stuffing of pay-roll with ghost workers, and electoral malpractices and violence returned to the front burner, after a brief lull.

8Succeeding regimes (1985-99), marked by very corrupt and repressive military rule and growing personalisation of power, saw corruption spreading to virtually all spheres of society, includingthe civil society and the private sector, becoming a national culture11 The scale of corruption during that era in Nigeria is reflected in the Pius Okigbo Report, which noted that about $ 12 billion in oil windfall which accrued to the nation during the 1990 gulf war could not be accounted for, by the military regime of Ibrahim Babangida12. In 1998, a Panel constituted to facilitate the recovery of funds looted under the Abacha regime (1993-98) also revealed how top military and civilian leaders, including Abacha himself, siphoned billions of dollars in public funds to offshore accounts, while using their positions and public resources to acquire choice properties around the country13. In 1999, following return to democratic rule, the Christopher Kolade Panel in a very celebrated report also indicted the last military regime of General Abdusalami Abubarkah (1998-99),

for awarding, massively inflated, contracts, licences, awards, etc., usually to firms in which top echelon of the regime had substantial interests, causing a sharp drop in the countries external reserves14.

9Some of the most rampant manifestations of corruption in Nigeria today (under the Fourth Republic), include the inflation of contracts in return for huge kick-backs, which has also grown in its proportion, fraud and falsifications of accounts and official records in the public service, forgery or falsifications of vital documents (including educational qualifications, to gain important offices), especially by aspiring politicians and public servants, the ghost worker syndrome, examination malpractices in educational institutions, bribery, extortion and perversion of justices, especially among the police and judiciary, and of cause, the various crimes against the state in the private sector, sometimes by multinational firms operating in the country, in such areas as tax evasion, over-invoicing of goods, foreign exchange swindling, hoarding and smuggling. Others are frauds in the banking and finance sector15, and of course the illegal acquisition of public assets, such as landed property and a frightening degree of electoral fraud16

10Thus, corruption remains wide spread today, affecting virtually all public institutions, despite the incumbent regime’s well publicised move to fight it. For instance, a recent audit report on federal govemment finances, which covered key institutions such as ministries and parastatals, public corporations, the judiciary, the federal legislature and the presidency among others, authored by the Auditor-General of the Federation, revealed that as much as 23 billion naira, may have been lost to corruption in 2002 alone. The amount represents financial frauds perpetrated by state officials, ranging from outright embezzlement, payment for jobs not done, over invoicing, double debiting, inflating of contract, to release of funds without the consent of the approving authority17

From Patrimonialism to Néo-patrimonialism

11The last few decades have witnessed the emergence of competing theoretical models on corruption, which have illuminated many aspects of the phenomenon. The developmentalist/modernization theory (Huntington, 1968), the funtionalist theory (Leff, 1964), the public choice perspective (Mbaku, 2000), the Principal-agent theory (Klitgaat, 1988) are some of the theoretical models that exist in the literature. But because corruption in Africa is now systemic, we can no longer be contended to use these theoretical models, as they are no longer adaptable. More importantly, African corruption raises not only economic but also social and political rationality18. In Africa, unlike elsewhere, we have in some cases more of corruption of the social exchange type, in form of nepotism, tribalism and clientelism etc, more than the economic exchange type, due to the place of such primary group relations in Africa. However, this type of corruption can also lead to corruption of the economic type, due to social pressures on public officials to fulfil social obligations19.

12For this reason, some scholars (J.F Médard, R.H. Jackson and C.G Rosberg, R. Joseph, Peter Lewis, and J.F. Bayart), have offered the “neopatrimonial” framework, not only because of its analytical advantages, but also for its historical and cultural relevance to Africa20. Clapham argues that “it corresponds to the normal forms of social organization in pre-colonial (African) societies”21 While Médard relates it to the historical context within which the post-colonial state emerge from a colonial heritage22. Subsequently, these scholars have analyzed the same phenomena under related theoretical labels, including “personal rule”, “Predatory rule”, “prebendalism”, and the “politics of the belly”. After reviewing and comparing these different terms, Médard affirmed that these theoretical differences are trivial or mostly semantic23.

13Néo-patrimonialism derives from the concept of “patrimonialism”, which Weber used to designate a style of authority in small traditional polities, where a ‘big man’ rules by dint of personal prestige and power, while followers are treated as extensions of his household. Authority is personalised and shaped by the ruler’s preferences, rather than any codified system of law. The ruler ensures political stability and personal political survival by selectively distributing favours and material benefits to followers or clients24. Médard have identified three features of patrimonialsim; no distinction or confusion between personal and public property; personalisation of power at the summit and also at all the levels of authority and a direct exchange of political and economic resources (i.e. power and wealth) or ‘stranddling’25. Weber distinguishes patrimonialism from a legal-rational bureaucratie system of authority, governed by formal rules26

14Although contemporary African societies do posses varying degree of bureaucratic institutions and formai rules, they still “retain in modified form many of the characteristics of patrimonial rule, forming a “hybrid political system in which the customs and patterns of patrimonialism co-exist with rational-legal institutions”27 Modem neopatrimonialism is thus, differentiable from the traditional model, to the extent that it is a mixed one and not the ideal, because there is a formal and subjective differentiation between public and private sectors28.

15African corruption is largely informed by this neopatrimonial logic, with its common features including also ‘straddling’, where businessmen are also politicians, the confusions between public and private spheres, even though there is a subjective distinction and patronage/clientelism, arising from the necessity for political elites to redistribute part of the resources stolen to maintain their political clientele29. This is vital to the stability of political leaders and their survival, being the only way to legitimize their power in a society where the state is still viewed as an alien imposition30

16The Nigerian corruption is similar to those found in other Africa states, given the similarities in their history, culture, levels of social development. It is characterized by “stradding” a system where economic and political powers overlap (e.i. almost all politicians are businessmen in Nigeria), a confusion between the private and public realms, and patronage or clientelist redistribution of the ‘national cake’, what Joseph calls “prebendalism”31.Indeed, politics in Nigeria centres on redistribution of state patronage in an atmosphere of fierce ethnic and regional competition32. Politicians who occupy public office are expected to use their position to amass resources for themselves and members of their primary groups, or else they lose their relevance. This explain why communities in Nigeria often lobby to ensure that their ‘sons’ are appointed into lucrative offices and protest loudly when they perceive their communities are ‘neglected’ in the scheme of things. It is also not unusual to see communities putting up a spirited defence of their ‘son’, when an attempt is made to remove him on corruption charges or insist that he or she be replaced by another individual from their ‘community’.

17Under this arrangement, the official purpose of state offices or resources often becomes a secondary concern, notwithstanding regular pronouncements of state officials to the contrary. Instead, awarding of state contracts or appointment into public offices are simply conceived as an opportunity to spread national resources, “à la federal character” reward individuals and communities for their support or better still as an invitation to come and ‘chop’ This logic is firmly rooted in the perception and behaviour of both the elite and the followership33. The notion of public office as an opportunity to “chop” is also generalised and is now a stable pattern of behaviour which govern the actions of individuals at all levels in the Nigerian society, irrespective of the type of regime in power. The average policeman, the civil servant or the politician, all see their various positions as an opportunity to “chop” and if possible, to give other members of their reference group (family, clan, ethnic group, party etc.) to “chop” also.

18This paper argues that the failure of the ICPC to stem the tide of corruption in Nigeria since its inception is largely explained by this prevailing neopatrimonial logic, more than any other factor. It contends that, except the putting in place of such institutions are accompanied by a radical change in social values and practices beginning from the top, corruption may likely remain a major problem in Nigeria in particular, and in Africa in general. The remaining part of this article is divided into three parts. The first part traces the immediate processes leading to the emergence of the ICPC, the second looks at the ICPC’s elusive quest for good govemance and transparency, while the final part présents a conclusion which summarises the major observations and outlines some recommendations.

SETTING AN ANTI-CORRUPTION AGENDA FOR A NEW REPUBLIC: THE EMERGENCE OF ICPC IN THE FOURTH REPUBLIC

19The inauguration of Nigeria’s Fourth Republic on May 29, 1999, was marked by a heightened awareness of the devastating consequences of decades of wanton corruption on the Nigerian society and an unprecedented national resolve to tackle the menace, perceived as the most potent factor frustrating the country’s development. This national mood was well captured in an acceptance speech by the then president elect, Olusegun Obasanjo, following his victory in the February 1999, presidential election:

I regard the resuit of this election as a mandate from the people of Nigeria and a command from God Almighty that I should spare no effort in rebuilding this nation. I understand the clear message of the Nigerian people. In giving me their mandate, they have asked me to restore our dignity they want me to alleviate poverty and reduce corruption”34.

20Obasanjo made corruption a key campaign slogan, promising that if elected he will not recognise any ‘sacred cow’ in his war against corruption. Before his election, Obasanjo, a known crusader against corruption and abuse of power, and one time President of Transparency International Board of Governors, had left no one in doubt about his disdain for corruption. In many fora, he had emphasized the devastating consequences of corruption on Nigeria’s socio-economic development and wellbeing, affirming that no meaningful development can take root in a society so pervasively ravaged by corruption. His imprisonment between 1995 and 1998, by a previous military regime, was not unconnected with his principled and courageous stand against corruption by the regime. Upon his election, Obasanjo promised he would end the brutality and systemic corruption that characterized the country’s past, especially the preceding 16 years of military rule.

21To give teeth to his anti-corruption crusade, he presented to the National Assembly, the ‘Prohibition and Punishment of Bribery and Other Related offences Bill’, exactly six weeks after he took office35. While presenting the bill, the very first bill under the Fourth Republic, the President noted that: “we believe this law is morally right and politically correct and necessary to change the attitude of Nigerians”36. The Bill was also in part, a fulfilment of provisions of the ‘1999 constitution’, which had required under Section 15(5), “that the state shall abolish all corrupt practices and abuse of power”37. The decision to initiate such a new law was similarly informed by the realisation that given the high levels of corruption and its current modem and sophisticated nature, existing legislations could not effectively check the menace. The law aimed to prohibit, prevent and prescribe punishments for corruption, through the instrumentality of a national anti-corruption agency modelled after those of Hong Kong, Singapore etc.

22The process of passage of the bill in the national Assembly was, however, marked by a lengthy legislative squabble38, and even after the Bill was finally passed into law on June 13, 200239, paving way for the inauguration of ICPC, several State Govemments went to the Supreme Court to challenge the legality and powers of the body. These challenges which constituted the initial obstacles threatened the survival of ICPC, raising questions about the commitment of the political class to the war against corruption in Nigeria. This was however overcome by a June7 2002, Supreme Court ruling, affirming the status and powers of ICPC40.

Structures and powers of the ICPC

23The ICPC was inaugurated on September 29, 2001, with Hon. Justice Mustarpha Akanbi, a well respected jurist as its chairman41. It has its administrative headquarters in Abuja, the federal capital and is expected to establish branch offices in all the 36 states of the federation. Under Section 3(12) of the Act, ICPC is conferred with the powers to appoint, dismiss and exercise disciplinary control over its staff42

24However, as a new organisation which was greeted with public pressure for its immediate take-off, ICPC faced some administrative problems upon its birth. These raged from the vital question of how and from where to pool its foundation staff to the issue of office and residential accommodation of its key staff and finance. To enable it commence operations immediately, it had to make do with skeletal staff deployed from other public institutions43. The unavoidable dependence on the services of staff of these institutions, some of which had been grossly tainted with corruption of the past, especially the Nigerian Police, became a source of concern for the Public44. However, the commission has in the last three years moved to effect the recruitment of its own workforce, based on its need and the level of resources available to it.45

25Before the enactment of the Act, there were other laws which dealt with corrupt practices in the country. These included:

• The Criminal Code (applicable in the Southern states).

• The Penal Code (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),

26Decree 1994 (as amended in 1999).

• The Code of Conduct Bureau and Tribunal Act, Cap.56 Laws of the Federation of Nigeria 199046.

27However, as varied as these laws were, they were believed to be out dated to the extent that there are now modem methods of perpetrating corruption, which were not within the contemplation of the law makers at the time the older statutes were enacted. Dealing with these modem methods, it was thought, required a modem legislation. Further more, they were said to be scattered, rather than grouped together conveniently and were not comprehensive47. The 2000 Act, therefore aims to bring about some orderliness in the laws, by putting them in a more comprehensive document and to fill the lacuna created by the inadequacy of existing laws48. It however recognised the existing laws49.

28The powers and responsibilities of the commission are outlined in the Act. The Act begins with an interpretation section which defines the word ‘corruption’. According to the Act, corruption ‘includes bribery, fraud and other related offences’. It 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 duties50.

29The interpretation is important because it guides the court in its interpretation of certain words and phrases used in the Act and it assists the commission in determining what conduct constitutes corrupt practice. ICPC is empowered to:

- Receive and investigate complaints from members of the public on allegations of corrupt malpractices and in appropriate cases prosecute the offenders51 This is however not the case in places like Hong Kong, where the commission has the power to investigate and prosecute any one suspected of corruption, without receiving complaints52.
- examine the practices, systems and procedures of public bodies and where such systems aid corruption direct and supervise the review.
- advise govemment officials and agencies on the ways corruption may be eliminated or minimised by them and changes in practices, systems or procedures compatible with the effective discharge of the duties of public bodies to reduce the likelihood or incidence of corruption;
- educate the public against bribery, corruption and related offences.
- enlist and foster public support in combating corruption53

30ICPC has created various departments/committees to deal with different aspects of its duties. The fïrst deals with investigation and prosecution; the second the study of the systems, practice and procedures at public institutions, with a view to identifying areas which will lead to corruption and how to minimise it: and the third, public enlightenment and education. Each committee hasamember of the commission as its chairman. ICPC’s chairman heads the investigation and prosecution committee54

31The also Act created a wide range of offences which includes acceptance of gratification by officials, corrupt offers to public officers, corrupt demand by persons, offences relating to corrupt and fraudulent acquisition of property. Others are offences committed through postal systems, deliberate frustration of investigation by the Commission, making false statement or return, gratification by and through agents, bribery of public officers, offence of using office or position for gratification, bribery in relation to auction, bribery for giving assistance etc, in regard to contracts, failure to report bribery transactions, dealing with, using, holding, receiving or concealing gratification, making of statements which is false or intended to mislead and attempted conspiracy. Penalties for these offences range between 10 years and 1 year imprisonment with the option of a fine. ICPC enjoys wide powers to enforce these provisions, including the powers to investigate, search, seize (any property which is the subject of investigation) and arrest, if it deems that to be necessary or can facilitate its work55 and its officials investigating cases enjoy some immunity, and are conferred with special powers56

32In order to eliminate all forms of corruption, especially the modem methods of perpetrating it and render ICPC and its fight against corruption more effective, the Act makes provisions for certain unique clauses:

- It limits the time within which offences of corruption can be tried to 90 wotking days with a proviso to extend it when good grounds exist;
- Special judges of the High Court are to be designated to try only corruption cases to accelerate the speed of trials, bearing in mind the snail-speed of the Nigerian judiciary;
- The protection of witnesses and their evidence;
- Presumptions in certain cases, notably given or receiving of gratification, which can be presumed to have been done for corrupt motive once it proved that it has been given or received in the first place57 This is not exactly the same situation in the cases of Hong Kong and Singapore, where the onus is placed on the person suspected or accused of any form of corruption to prove otherwise58.;
- It states that evidence shall not be admissible to show that gratification is customary in any profession, trade, vocation or calling or on a social occasion;
- It outlaws bribery in relation to bidding at an auction sales and;
- Bribery for giving assistance or using influence in procurement of contracts;
- It criminalises soliciting or accepting advantage as an inducement or reward for giving assistance in the promotion, consideration or other money stipulated in any contract;
- inflating the price of goods or services above the prevailing market price or professional standards;
- awarding of contract without budget provision, approval and cash backing and;
- transfering the spending of money for a particular project or service on another project;
- failure to report bribery transaction and
- giving of false information to the commission59.

33Thus, in the context of a legal framework for combating corruption, there seems to be sufflciently worded legislations in the Act for tackling most aspects of corruption pervading public and business life in Nigeria.

INVESTIGATIONS AND PROSECUTIONS: AN ELUSIVE QUEST FOR TRANCEPARENCY AND PUBLIC ACCOUNTABILITY IN NIGERIA

34Within the fïrst year of its establishment, ICPC arraigned twelve personalities on corruption charges despite its initial administrative problems. These twelve included some well placed people, like a High Court Judge, a prominent lawyer (SAN), a multi-millionaire and chief executive of an insurance firm, permanent secretaries and directors, as well as state commissioners60. By March 28, 2002, the number rose to 39 accused persons standing trials in 17 criminal matters pending in various designated courts. The trials emanated from the over 800 petitions before the commission then61. Unfortunately, virtually all of these cases have been politicised or stalled in the courts, because of the frequent adjournments and the interlocutory orders and injunctions normally granted accused persons by the courts. More disappointing, some were in fact thrown out on technical grounds. Thus, even though ICPC prosecutes cases, it will appear that the ‘Nigerian factor’ and the decay in the judiciary, and not necessarily financial or manpower limitations, have ensured that there is no headway.

35ICPC’s first prosecution took place in 2001, when in a highly publicised trial four individuals were docked for allegedly offering of 3.5 million naira in gratification to a member of the Justice Obiora Nwazota Commission of Inquiry, established by the Federal Government on the Nigerian Airways Limited (NAL). The accused persons included, one Milton Ohwovoriole, holder of the highest professional honour, SAN, chief Adebiyi Olafisoye, multi-millionaire broker and owner of Fidelity Bond (Ltd.) and a manager in his company, Adeyemi Omowunmi. The trio were said to have conspired to offer the sum through Omowunmi, to one Mika Anache, a member of the Justice Nwazota panel62. The goal, according to the receiver (Anache), who admitted Omowunmi brought the money which he claimed was from his boss, Olafisoye, for him and other members of the Justice Nwazota panel of inquiry, was to wrest a favourable report from the panel,63 which for over nine months unravelled the decades of wroth in the NAL64

36Anache, a member of the ruling Peoples Democratic Party (PDP) and the Presidential Committee that reviewed the 1999 constitution, said he kept the money in his bank account for two months, ‘because the commission was on recess’, but failed to disclose this until when the commission resumed, only to admit receiving the money when another member of the commission raised the issue that he learnt a commission member had taken 3.5 million naira in gratification65. This constitutes an offence under the Act.66 All the accused persons, where charged under the Act, though they denied any knowledge of the gratification67.

37Given the social backgrounds of the accused persons, in this first antigraft case, it was thought that the trial was a timely warning to the public, that the Act and commission will not be hostage to the unwritten, but abiding solidarity between the bar and the bench and that party loyalty might not shield anyone from facing prosecution under the present dispensation. Unfortunately however, this promising trial, like others which followed, has remained stalled in the court process till date. More ironical, the principal suspect in the trial, Omowunmi who allegedly ferried the money in question to Alhaji Anache, disappeared from police custody, in what the police describe as ‘mysterious circumstances’68 Thereby further compounding the case for the ICPC.

38In another development, ICPC had commenced investigations on an alleged shady acquisition of a commercial property situated at Victoria Island, a high braw area in Nigeria’s sprawling commercial capital, Lagos, involving some officials of Ondo State. The property was allegedly acquired for 500 million naira in a very questionable deal. Some top officials of the state, including the governor, were suspected to have corruptly benefited from the transaction, in contravention of the 2000 Act69 Based on a petition alleging corruption, ICPC issued an order to the state’s Commissioner for Finance, requiring him “to appear before the commission and produce all documents relating to the purchase of plot 90 (the property in question)70.”

39This order was however flouted with impunity, prompting ICPC to dispatch some of its officers with a warrant of arrest, in what turned out to be an elusive search. Rather than obey ICPC summons, the Finance Commissioner and indeed the State Government, took ICPC and its chairman to court, alleging defamation71. They accused ICPC’s chairman of haven “gone on air (media) to declare the commissioners wanted by the ICPC as ‘fleeing criminals’” and only issued a summons requiring them to appear before it, “when it became conscious that it had ran foul of the law setting it up”. Before the order came, the Finance Commissioner went to court and obtained leave to enforce his fondamental human rights which had been ‘largely infringed upon’ as a resuit of a Radio and Television programme72.

40They alleged that “the procedure adopted by the ICPC is not a mistake but part of a deliberate and calculated attempt to embarrass the leadership and Government of Ondo state”73. They traced there problem with the Commission to a former commissioner in the state cabinet, who was ‘dismissed’ from the cabinet for fraud. The said ex-commissioner, who was privy to the transaction which took place while he was still in the cabinet, later made available to the PDP (a rival political party which he later joined) leadership in the state certain documents which he claimed represented the State Executive Council conclusion on the purchase of plot 90. They alleged ‘political conspiracy’, instigated by their political rivais in the PDP with the active connivance of ICPC, to discredit the Alliance for Democracy (AD) govemment in the state, in order to gain political advantage, ahead of the 2003 general elections74

41Subsequently, attempt by ICPC to prosecute two ofthe state’s commissioners on an 11 count charges in the court over the property, was frustrated, in the usual Nigerian fashion, by multiple court injunctions and adjournments and the media war which followed. Initially, the trials were halted as a resuit of the legal action against the commission at the Supreme Court, to which Ondo State was also a principle party75. But even after the Supreme Court delivered its verdict in favour of ICPC, this case, like others, have remained stalled in the an endless court process.

42In September, 2002, ICPC however recorded its only successful prosecution till date, when a Local Council chairman in Kogi State, was sentenced to three years imprisonment, by a high court for ‘awarding a contract for the construction of mobile telephone project, to a local firm to the tune of 4.5 million naira without budgetary provision, approval and cash backing, contrary to and punishable under Section 22(4) Act 200076. Unfortunately, this conviction although a major break-through, failed to elicit any applause from the public, much of whom were already getting frustrated by ICPC’s seemingly helplessness in the face of growing corruption in the country. Understandably, the public wanted to see the ‘big fishes’ put behind bars. Unable to repeat this feat, particularly with respect to the VIP’s, public criticism soared, leaving ICPC with no choice, but to go after the reat thieves’ or remain discredited.

43In highly publicised move, ICPC soon announced that it has received petitions against some highly placed officials, who were to be investigated for various offences. These included the President of the Senate, the Speaker of the Federal House of Representatives and some state governors spread across the then three political parties. This development aroused tremendous interest among the public, who had almost lost confidence in the ICPC. Any successful prosecution of officials of such calibre in Nigeria, would have undoubtedly sent the appropriate signais and help convince the cynical public that the commission was still on track. But unfortunately, the exercise turned out to be another phase in the commission’s protracted and controversial battles, which almost led to its abrogation by the Legislators.

44By 2001, the federal legislature, comprising the Senate and House of Representatives has emerged one of the most notorious public institutions in Nigeria, with respect to allegations of corruption since the commencement of this republic, in May 1999. Indeed, the scenario in the Senate, since the removal of its first president on November 19, 1999, has painted a clear picture of a chamber polarized by greed. No sooner would a president and his team be removed on allegations of corruption sometimes substantiated by documents than the next leadership would be mired in allegations of fmancial recklessness77. Allegations of corruption in the floor of National Assembly took a more comical dimension in the House of Representatives when in a remarkable piece of parliamentary theatre some law makers walked to the front of the lower legislative chamber and handed over a large ‘Ghana Must Go’ bag full of cash, which they said was given to them in order to influence their vote in parliament78. This incident took place during a period when the legislature was considering a motion to impeach President Obasanjo, fuelling suspicion that the money may have emanated from the Presidency or sources close to it79.

45Given this prevailing atmosphere of graft in the federal legislature, ICPC’s decision to commence investigations into the affairs of the leadership of both legislative houses, was welcomed with relieve. The Speaker, Alhaji Ghali Umar Na’abba was accused of corruption by a member of the House who petitioned ICPC, alleging various acts of financial improprieties against the Speaker and some of his personal staff. Before the ICPC could conclude preliminary investigations on the petition, the Speaker headed to court and obtained an order restraining the Commission from investigating him, once the ICPC indicated that

from the evidence so far collected by the ICPC in the course of its preliminary investigations into the petition, there exist sufficient reasons to interrogate the Speaker to clarify some issues outstanding to him80

46Senate President, Ayim Pius Ayim, was also accused of corruption by a controversial Senator, Arthur Nzeribe, who alleged that Anyim used his position to corruptly acquire some landed properties both within and outside the country and transferred Senate savings to one of the commercial banks in the country in violation of existing rules, among other offences81.

47On the basis of these petitions, the ICPC immediately swung into action, ordering thorough investigation into the allegations. Accordingly, “the petitioner was invited to the commission’s headquarters and drilled for several hours to authenticate his claims”82. During his interrogation, he promised to show ICPC officials the houses he mentioned in his petition. When ICPC officials, armed with sophisticated video cameras, arrived at the site of one of the houses in question, in company of some aides of the petitioner, they were held hostage for several hours and prevented from carrying out their duties by security men attached to the Senate President. The incident almost degenerated into a violent conflict, but for the timely intervention of the Inspector-General of Police.

48Subsequently, Anyim went to court to restrain the ICPC, after which he petitioned President Obasanjo, complaining about the modus operandi of ICPC’s investigation of his said property83. Anyim contended in his petition that it was illegal for ICPC officials to enter the premises of his property without his knowledge or any form of search warrant, sighting Section 36 (1 and 2) of the ICPC Act84. He also drew the attention of the President to sections of the Act which forbid public disclosures of reports85. He was also not happy that ICPC officials were in company of three aides of the petitioner, who was considered a sworn enemy of Anyim, but a close associate of President Obasanjo, wondering why ICPC has not prosecuted Nzeribe, who himself had on several occasions openly confessed giving and accepting bribes86

49Anyim, not satisfied by Obasanjo’s response to his petition, reported the matter to his colleagues in the Senate, who subsequently passed a motion on November 19, 2002, to investigate the activities of ICPC since its inception, with a view to reviewing the law establishing it87. Surprisingly, Anyim, unlike his predecessors, got the backing of most of his colleagues in the Senate and even the House of Representatives, in what later turned out to be a war of attrition between the three arms of govemment. On the day the motion was debated, Senators took tum to condemn ICPC’s dismal performance and its transformation into a ‘puppet’ of the executive88. Their actions were informed by the urgency with which the ICPC handled cases involving their leaders, a time when they were considering a motion to impeach the President, even though ICPC had ‘thousands’ of cases of corruption in its files, especially those involving ministere and others close to the Presidency, but has not been able to do much work on them89.

50Before the dusts raised by ICPC’s attempted investigation of legislatore and the power tussle which followed it could settle, ICPC came out with what turned out to be another bag of controversies. Following a request from the leadership of the PDP, it announced, three months to the highly awaited April 2003 elections, that investigations on alleged corrupt practices involving at least 15 state governors (all of whom where seeking re-elections), mainly from the ruling PDP, had almost been concluded and that those who are found wanting will face the music. It later announced that it had forwarded requests to the Chief Justice ofthe Federation, CJF, to constitute independent council to probe those who have cases to answer, in line with Section 52 of the 2000 Act90

51This came at the height of campaigns for the 2003 elections, expectedly raising great political stakes and even suspicion in different political cycles, given the potential political implications which a damning ICPC report could have on any political aspirant. The question became, why did the ICPC suddenly decide to wake up from its slumber in the midst of electoral campaigns? Despite assurances that the exercise was not intended to undermine any aspirant, there remained throughout the period a wide spread suspicion that the leadership of the party in close collaboration with the Presidency may be planning to truncate the aspirations of some of the governors, especially those who where believed to be opposed to the President’s second terni bid, using ICPC as a weapon.

52On January 20, 2003, Governor D.S.P. Alamieyeseigha, of Bayelsa State, one of those indicted by the ICPC report, went to court to stop the CJF, from appointing an independent council to complement the investigation by ICPC of charges of corruption levelled against him, which he vehemently denied.91 Alamieyeseigha, who had earlier secured a copy of ICPC report on him, from an ‘undisclosed’ source, declared that ICPC probe on him was

politically motivated and that the contents of the investigation by ICPC, must have been manipulated by politicians bent on denying the governor (himself) a second term.92

53Alamieyeseigha was accused by a petitioner, who according to the local media “is backed by a wealthy politician who has political ambition in the state”93, of ilegally approving contracts and payments of 1.7 billion naira to eight fictitious companies in connection with the Niger Delta University project. The State Tenders Board also allegedly issued contracts worth 667,258 million naira to other fake companies. The petitioner alleged that the governor corruptly enriched himself by using govemment funds to acquire eight properties, including a five star hotel in the country, while also usingtwo local banks as conduit pipes to move billions of state funds to private accounts. ICPC even alleged that efforts to ascertain the governor’s ill-gotten landed properties were frustrated by the state Commissioner of Lands and Housing, who refused to cooperate with its officials during their investigations94.

54The companies which Alamieyeseigha allegedly used as a conduit for siphoning money by awarding contracts to them vehemently denied any wrong doing. They contended that, not only were they legally in existence, contrary to ICPC’s claim, but that they did not even have any business connection, whatsoever, with the state. They chided ICPC for spreading ‘falsehood’ against them, in an apparent attempt to ‘intimidate’ them. These companies subsequently headed to the court and got injunctions restraining ICPC from prosecuting them based on the allrgations made against them95.

55Curiously, ICPC is yet to respond properly to these charges by the Bayelsa govemment and the said companies or come out without any convincing expianation to clear the air on these seeming inconsistencies in its report relating to the governor, fuelling suspicion and rumours that operatives of the commission handling the cases might have compromised their positions for monetary gains or other political considrrations96. Though these rumours have not been proved (or even disproved), considering the type of allrgations made against Alamieyeseigha, as contained in the ICPC report, at a time when he was struggling to keep the gubernatorial nomination he had earlier won in a keenly contested govemorship primaries and the manner the report was leaked to the press and the governor himself, there can be no greater confirmation of either the unwholesomeness or lapses in the ICPC investigations. ICPC’s silence, despite the seriousness of the allegations, has not helped matters. Worst still, the cases have remained unresolved and stalled, like the others, in the Courts.

56On February 6, 2003, the Senate commenced processes for the amendment ofthe 2000 Act.97 Some of the proposed changes, obviously intended to weaken the ICPC, included the provision that a serving Justice of the Court of Appeal who is now to be appointed by the CJF, rather than the President, subject to the confirmation of the Senate, should head ICPC in the new arrangement98. By this amendment, the president was effectiveiy stripped of his powers to appoint officers of ICPC. With the amendment also, the present Chairman of the Commission, who has been having a running battle with some political office holders including the legislators, over allegations of corruption, will have to give way to a serving judge to head the Commission. The amendment also affected the powers of ICPC, the procedure of its investigations and scope of punishment it could met out to those found guilty under the law. Most importantly, it restored the right ofthe citizens to know that they are under investigation99. To demonstrate their seriousness to effect the changes, the bill was made to pass the first and second readings on the same day, a clear departure from parliamentary tradition100.

57The threats and counter threats which followed the proposed amendment brought the three arms of govemment into a sharp conflict, threatening to ridicule not only the ICPC, but also the judiciary, in what appeared to be a judicial anarchy with potentially disastrous consequences for the country’s fledging democracy101. The President who had earlier wrote the leadership of the National Assembly asking it avoid taking any further action on the new bill, in line with a High Court order which directed all parties to halt proceedings on the passage of the law, haven been ignored by the lawmakers, withheld his assent to the bill. But undaunted by the mounting opposition against it, the National Assembly, in a spécial session, on May 7, 2003, overrode the presidential veto and went on to pass the amended ICPC Act 2003, into law102. This crisis was however resolved by the same court, which declared the 2003 Act null and void, on May 21, 2003, while directing that the 2000 version of the law should continue to operate until it is amended by due process of law103.

TOWARDS A MORE SUCCESSFUL WAR AGAINST CORRUPTION IN NIGERIA

58This article has reviewed Nigeria’s recent attempts at fighting corruption, focusing specifïcally on one of the principal anti-corruption institutions, the ICPC, which as we have seen has failed to curb corruption especially among the political class. Rather than secure the conviction of these corrupt officials, the reason for why it was established, ICPC have become politicised and neck-deep in damaging controversies, losing its credibility in the process. So that it is now seen by some as a mere instrument for witch-hunting political enemies. Its dismal performance has been partly due to its own many internal contradictions and administrative problems, but more fondamentally, to systemic factors outside its control, i.e. the prevailing néo-patrimonial orientation of the political class who politicised the exercise and used the deficiencies in the legal system to frustrate attempts to combat corruption in Nigeria. This has destroyed public confidence in the ongoing efforts to fight corruption, and eroded the legitimacy of the principal agency for the war against graft.

59These developments are not completely unexpected, given that, at birth, ICPC and indeed its enabling status, did not receive a very warm reception from all sections of the political class. State Governments and the federal législature had right from the beginning been very suspicious of its powers, which explain why it took the lawmaking body one full year to pass the Bill in to law, after injecting the clause that the President and his Vice along with the governors and their deputy should not be immune from similar probe. Several state governments also registered their opposition to the anti-corruption law which they said was a violation of the constitution. These challenges foretold the kind of opposition which ICPC was to confront.

60On the basis of the foregoing analysis, we propose the following suggestions, which, could help reposition the commission and make the current attempt to curb corruption more effective:

(a) A restructuring of ICPC’s leadership, with a view to bringing on board men and women of high moral standing known for their personal commitments to the crusade against corruption will be required to restore its credibility. In order to win public confidence, support and participation, which are necessary conditions for any successful struggle against corruption, the appointment of the top echelon of the commission would need to be opened up to some form of public participation. It will be helpfol in this regard if the govemment, involve at least a significant section of the civil society, including opposition parties.
(b) The Act should be revisited, with a view to effecting the changes that will empower ICPC to:

1. Monitor potential sources of corruption and investigate individuals on grounds of reasonable suspicion, as against the present practice, where the commission can not probe anyone, irrespective of the amount of evidence available to it, except upon the receipt of a petition.

2. Probe cases of corruption irrespective of the date of the offence. One way of doing this, is to empower the commission to prosecute such individuals where strong grounds exist in its opinion, but on the basis of previously existing laws.

3. Receive sufficient independent funding, to lessen its dependence on the whims and caprices of the executive and legislature. It could draw its funding from a Consolidated Revenue Fund, as applicable to the judiciary.

(c) A radical and comprehensive reform of Nigeria’s institutions for the administration of criminal justice. Experience has shown that the police and the Judiciary are key institutions which require urgent reforms, in the battle against corruption and other crimes.
(d) ICPC officials need to acquaint themselves very well with the provisions of the Act, to avoid running foui of the law. An impartial and non-political body, charged with the responsibility of supervising its operations, to ensure that its operations are done within the limit of its enabling statute will be useful.
(e) There is need to review and strengthen other anti-corruption institutions, as the responsibility of rooting out corruption can not be reasonably left to one institution, in a society where corruption so ubiquitous. The Office of the Auditor General and the Code of Conduct Bureau are relevant institutions and finally
(f) There is need to sensitise and mobilize the civil society to assume its role of watchdog. The political class can be forced by a well mobilized civil society, to demonstrate absolute commitmentto transparency and accountability and the required political will to lead the struggle, by shunning corruption and leading by example.