AN OVERVIEW OF THE CORRUPT PRACTICES AND OTHER RELATEOFFENCES ACT, 2000 A PRESENTATION BY Mohammed Ashiru Baba, FSI, MNIM, ANIPR (DEPUTY DIRECTOR, EDUCATION), INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION (ICPC)
AN OVERVIEW OF THE CORRUPT PRACTICES AND OTHER RELATED OFFENCES ACT, 2000 (ICPC ACT 2000) AT A WORKSHOP ON ENTRENCHING INTEGRITY IN PROCUREMENT PROCESSES IN TERTIARY INSTITUTIONS ORGANIZED BY THE ANTI-CORRUPTION ACADEMY OF NIGERIA (ACAN) ICPC AUDITORIUM, ICPC HEADQUARTERS, ABUJA FRIDAY 10 JULY. 2015
PROLOGUE ‘We acknowledge that we may not be able to eradicate corruption in its totality overnight, but we can at least begin by laying down the foundation of a moral and ethical society. Ethics and morality are the norms of every decent society and we must begin to acknowledge their importance in our society as the bedrock on which a wholesome, efficient, just and prosperous entity can be built’ - Former President OlusegunObasanjo On the occasion of the formal signing into law of the Corrupt Practices and Other Related Offences Act, 2000, 13th June,2000
OBJECTIVES OF PRESENTATION To enlighten participants on the provisions of the ICPC Act 2000. To guide participants on how to avoid falling foul of the anti-graft laws. To pull ideas and share experiences with participants on how to reduce corruption and transform tertiary institutions in Nigeria into the citadel of learning that they are supposed to be.
ORDER OF PRESENTATION TITLE PROLOGUE OBJECTIVES PREVIOUS LAWS AIMED AT CURBING INDISCIPLINE AND CORRUPTION THE ICPC ACT 2000 – BACKGROUND THE ICPC ACT 2000 – OVERVIEW SOME CORRUPT PRACTICES AND RELATED OFFENCES COMMON IN TERTIARY INSTITUTIONS CONCLUSION REFERENCES
PREVIOUS LEGISLATIVE AND INSTITUTIONAL EFFORTS • Criminal Code and Penal Code • Recovery of Public Property (Special Tribunal Act) LFRN (as amended) • Code of Conduct Bureau and Tribunal Act • Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree 1994 (as amended)
Corrupt Practices Investigation Bureau • Code of Conduct Bureau • War Against Indiscipline • War Against Indiscipline and Corruption • Mass Mobilization For Social and Economic Recovery
THE PASSAGE OF THE ACT AND INAUGURATION OF THE COMMISSION • Corrupt Practices and Other Related Offences Act, 2000 - Passed into Law 13 June, 2000. • The Independent Corrupt Practices and Other Related Offences Commission (ICPC) commenced operation on 29September, 2000 on the Inauguration of Its Board.
MANDATE OF THE COMMISSION • THREE PRONGED: • Enforcement - section 6 (a) • Prevention - section 6 (b-d) • Education and Public Enlightenment-section 6 (e-f) • Independence: ‘The Commission shall in the discharge of its functions under this Act, not be subject to the direction or control of any other person or authority.’ – section 3(14)
Powers And Immunities • In the course of Prosecution and Investigation (discharging their duties) officers of the Commission shall have all the powers and immunities of a police officer under the Police Act and any other law empowering and protecting law enforcers. Section 5(1).
Offences Contd. • Section 25(1)- An offence for any person to make a false, misleading or untrue statement to an officer of the Commission or any other public officer in the course of the public officer’s duty; Penalty: 2yrs or N100,000 fine or both. • Section 25(1)- An offence to make an inconsistent statement to a person having authority to receive such statement after making an earlier one to an officer of the Commission/ the Attorney-General; Penalty: 2yrs or N10,000 or both.
Offences Contd. • Section 26- Conspiracy Any person who attempts to, does an act preparatory to the commission of, abets or commits any offence under the Act is guilty of conspiracy and on conviction liable to the punishment prescribed for the offence
Offences Contd. • It is an offence for a person to deliberately frustrate investigation by the Commission where with intent to conceal an offence of corruption, he (a) destroys, alters, mutilates any book, documents, computer print out, electronic devices in his possession, (b) makes or is privy to making any false entry in books document or electronic record or (c) omits or is privy to omitting any material particular from any such book, documents etc. It attracts 7 years imprisonment – section 15.
Offences Contd. • Also under Section 41, it is an offence to: • Refuse an officer of the Comm. Access to premises or fail to submit to search • Assault or obstruct an officer • Fail to comply with a lawful demand, notice and order • Fail to produce to, conceal or attempt to conceal from him books, documents with which an act of corruption has been committed and liable for seizure. Attracts 1 year imprisonment WOF.
FALSE REPORT/PETITION UNDER THE ACT 2000 • Under the Act 2000, giving false report is a criminal offence and the punishment is very harsh. S. 64 (3) provides that: “Any person who gives the information referred to in sub-section (1) knowing the information to be false shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding ten years and shall also be liable to a fine not exceeding one hundred thousand naira”. • This is the stiffest punishment in the law and it is clear that malicious or false petition as captured by the law is the worst of all the offences of corruption.
OTHER PENALTIES • Penalties imposed for offences in sections 8-9 of the Act notwithstanding, persons found guilty for gratification shall in addition: • Forfeit the gratification and • Pay five times the sum of the value of the gratification if it can be valued or • Ten thousand naira whichever is higher- section 20. • In cases where there is a conviction, but there is no specific penalty provided in the Act the accused shall be liable to a fine of N10,000 or a maximum of two years imprisonment- section 68.
INVESTIGATIVE POWERS OF THE COMMISSION • Report of an offence to the Commission/officer may be oral or written; and where oral should be reduced into writing and read over to the person making the report. • Report should be signed or thumb-printed by the maker. • Where the maker is an illiterate, officer obtaining the report shall state so and also state that the report was read over and interpreted to the maker- Section 27(1)
Upon receipt of the report in section 27(1) or information otherwise received, the officer shall commence an investigation into the report using all the powers of investigation conferred on him under the Act and any other law- section 27(3). • The Act prohibits the disclosure of petitions to any person other than officers of the Commission or the Attorney-General until the accused person has been arrested or charged to court.
Investigative Powers • Power To Examine Persons • In the course of investigation an officer of the Commission has the POWER to: -order a person to come before him to assist investigation -order any person to produce books, document, articles or any certified true copy of same -order in written notice to any person to make a sworn statement in writing giving information to assist in the investigation of an offence.
Investigative Powers • Should any person who an officer has ordered to appear before him, to produce document etc, or furnish a sworn statement fail to do so, the person shall be guilty of an offence punishable with imprisonment for not more than three (3) years- section 28(10)
Investigative Powers • Power to Issue Summons: The Commission has the power to issue a summons to a person complained against or any other person to appear for the purpose of being examined in relation to a complaint or any matter for the purpose of facilitating an investigation. The summons shall be signed by the Chairman or an authorised officer- section 29. An officer serving a summons has the power to arrest and detain the person who refuses to acknowledge it. And it also an offence punishable with 1month imprisonment or N5,000 to refuse to acknowledge receipt of Summons – section34.
Investigative Powers • Power to Enter Premises: Upon Chairman’s directive and obtaining a court order, the officers of the Commission can: -enter any premises, search for and take any documents etc,. -inspect, make copies, take extracts of books, records or documents -search any person in or on such premises -break open, examine and search containers and receptacles -stop, search and seize any vehicle or conveyance- section 36(1)
Investigative Powers • Where necessary to exercise the power in section 36(1) an officer of the Commission may have to obtain a warrant to break open and forcibly enter a premises; remove by force obstructions or detain any person on any premises until a search has been conducted- section 36(2)
Investigative Powers • Power to Seize Property If an officer of the Commission, during investigation has a reasonable basis to suspect that any moveable or immoveable property is the evidence of the subject matter of an offence, he shall seize the property and shall keep a list of the property- 37(1)and(2).
BAIL • Section 42(1) provides that: ‘Every offence under this Act shall be bailable offence for the purpose of the Criminal Procedure Act or Code’. Subject to reasonable surety with bond. • Person on bail can be re-arrested without warrant if (i) he has breached the conditions of bail, (ii) the surety gives notice in writing that the person on bail has breached or is likely to breach the conditions of bail and that he (surety) wishes to be discharged.
Prosecution of Offences in the Act • Prosecution of the Act shall be initiated by the Attorney-General of the Federation or any person or authority designated by him in superior courts of record designated by the Chief Judge of a State or Chief Judge of the FCT. • Section 61(1) provides that every prosecution for an offence under the Act or other laws prohibiting bribery, corruption and other related offences shall be deemed to be done with the consent of the Attorney-General. • Section 61(2) still saves the power of other appropriate agencies to prosecute the offence of corruption against any person either before or after the coming into operation of the Act. • Section 61(3) confers power on the Chief Judges of the States and the Chief judge of the FCT to designate courts or judges to try cases of bribery, corruption etc under the Act or any other laws.
SPECIAL PROVISIONS IN THE ACT • Section 52: Independent Counsel: In cases of allegation of corruption under the Act against the President, Vice-President, State Governors and their Deputies, the Chief Justice of Nigeria upon finding a prima-facie in the sworn affidavit setting out the facts on which the allegation is made supporting an application on notice, shall authorise an Independent Counsel of not less than fifteen years standing to investigate the allegation and make report to the National Assembly in the case of the President or Vice-President and to State Houses of Assembly in the case of State Governors and their Deputies. The Commission is enjoined to give full cooperation and facilities to the Independent Counsel in carrying out his functions.
Section 53- Presumptions • Presumption of corrupt receipt of gratification • Presumption of Corrupt Motive/Reward • Presumption of knowledge of circumstances of an offence • Presumption of Wilful neglect and non-performance
Section 54- Public Evidence of Corroboration In any proceedings against any person for the offences in sections 8-19 if there is proof that about the time of the alleged offence or at any time thereafter, the accused or his relative or associate- • held any property which he is unable to satisfactorily account for its ownership or possession or custody; • had entered into a deal for the acquisition of the property and is unable to satisfactorily account for the consideration for which it was or agreed to be acquired, this shall be presumed to corroborate evidence of the commission of the offence.
Section 56- Admissibility of Statement In any trial of an offence of corruption under this Act any statement of any nature and time made by the accused, shall not withstanding anything to the contrary in any law be admissible evidence during trial, PROVIDED the officer who procured the statement shall be available for cross-examination. But if the statement was procured involuntarily, it shall be inadmissible- 56(3)
Statement Contd. Statement of a person who is dead is also admissible as well as the statement of a person who cannot be procured without delay or unreasonable expense to the Court; Also the Act makes admissible all photographic and electronic evidence- section 57.
EVIDENCE OF CUSTOM INADMISSIBLE AS A DEFENCE Section 60 provides that: ‘In any proceedings under this Act, evidence shall not be admissible to show that any such gratification mentioned in this Act is customary in any profession, trade, vocation or calling or on a social occasion’.
PROTECTION OF INFORMANTS • Section 64 (1) provides that the information received from an informant by an officer of the Commission as well as the source of the information, its circumstances, the place it was received and the identity of the informant shall not be disclosed or ordered to be disclosed in public except to the trial judge and defence counsel in court.
SOME CORRUPT PRACTICES AND RELATED OFFENCES COMMON IN NTERTIARY INSTITUTIONS At this juncture, I would like to take a cursory look at some of the corrupt practices and infractions commonly perpetrated in our universities, which are punishable under the ICPC Act 2000. These include but not restricted to: 1. Diversion of public funds to private pockets. 2. Virement/misapplication of funds to meet other needs without recourse to appropriation. 3. Lack of accountability in the management of refundable caution deposit. 4. Inadequate documentation of public funds. 5. Over – invoicing. 6. Falsification / alteration of figures. 7. Conversion of university resources to personal use.
SOME TERTIARY INSTITUTION CORRUPT PRACTICES AND RELATED OFFENCES 8. Payment of salaries to ghost workers. 9. Contracts cornered by council members. 10. Contract splitting. 11. Non adherence to laid down rules in award of contract. 12. Selection of projects based on personal benefit. 13. Bribery from contractors. 14. Lack of due process in appointments. 15. Promotion and discipline. 16. Victimization. 17. Gratification.
SOME TERTIARY INSTITUTION CORRUPT PRACTICES AND RELATED OFFENCES 18. Favoritism. 19. Nepotism. 20. Abuse of promotion and transfer procedures. 21. Forgery of certificates and other credentials. 22. Plagiarism and false claims to publications. 23. Exams mal-practices and deliberate delays in release of results. 24. Non completion of syllabus by lecturers, 25. Springing up of ‘degree meals’ – illegal universities of degrees awarding institutions. Looking the various offences enumerated above, it is quite clear that a marriage of inconvenience exists between Nigerian universities and the ICPC Act, which might lead to litigations and eventual divorce.
CONCLUSION I started this presentation with a prologue – an assertion of courage and political will made in 2000 by the then President Obasanjo. I would like to conclude with an epilogue – an assertion of goodwill and hope by the same personality when he said: ‘To a large extent, if faithfully implemented, this Act ought to substantially clean our society of the menace and evil of corruption. The society should be considerably sanitised by it. It is the toughest anti-corruption law in the history of our nation. It thus incorporates the spirit of national rebirth which is the driving principle of our Administration”.
CONCLUSION By and large, it is imperative at this juncture to underscore the need for due diligence and strict adherence to procurement process as laid down in the Public Procurement Act 2007 so as to avoid falling foul of the provisions of the ICPC Act 2000. Thank You ICPC TOLL FREE LINES: 08031230280-2; 07056990190-1
REFERENCES: 1. The ICPC Act 2000 2. Former President Obasanjo’s address to the National Assembly while signing into law, the ICPC Act on 13 June, 2000. 3. Report of the University System Study and Review (USSR) conducted by ICPC in 2013.