SERAP IN THE NEWS

What does corruption look like? The short answer is: not what you think it does, at least according to President Goodluck Jonathan who while recently “rethinking corruption” said that: “Over 70% of what are called corruption [offences], even by the EFCC [Economic and Financial Crimes Commission] and other anti-corruption agencies, is not corruption, but common stealing.”

This very high percentage suggests that Nigeria may be nearly corruption-free. If this is the president’s proposition, this government has something of a mountain to climb to satisfactorily prevent and combat corruption and impunity of perpetrators in the country.

The ‘over 70% cases of corruption’ that fit as ‘common stealing’ under the president’s ‘definition’ would presumably include dozens of unresolved corruption cases against former governors, unresolved cases of corruption in the petroleum sector especially the case of the missing $20 billion from the account of the Nigeria National Petroleum Corporation (NNPC), unresolved oil subsidy scam, the unimplemented KPMG report on corruption within the NNPC,  unresolved cases of corruption in the pension fund, unresolved cases of corruption in the Universal Basic Education Commission funds, and the unresolved cases of corruption in the capital market. The list goes on!

If these are cases of ‘common stealing’, then what is corruption? Nigerians would like to know exactly the measurement or empirical data used to come up with such notion of corruption. Clearly, the message being conveyed would seem to be that the country is making progress against corruption. But this idea of corruption is certainly in the realm of feelings and not of legal rules, morality or facts.

Here’s the thing: The term ‘corruption’, probably the most used word (inevitably subjec­tively and controversially, but almost always habitually) in the whole vocabulary of politics, is derived from the Latin verb curruptus, which is translated as ‘to break’.  Linguistically, the word is used rather pejora­tively and censoriously to refer to any of the following: ‘dishonest or illegal behaviour, especially of people in authority’; ‘the act or effect of making someone or something change from moral to immoral standards of behaviour’.

According to the House of Lords in Cooper v. Slade, corruption is “Purposely doing an act which the law forbids as tending to corrupt” [See 8 [1857] HL Cas 746]. In Biobaku v. Police, the court describes corruption as “acting improperly.” Thus, there will be corruption when “a public officer fails to carry out his duties honestly and impartially, and when he is affected by considerations of benefit to himself or another person” [See 1951] 20 N.L.R. 30].

These definitions presuppose legal prohibition of some ‘dishonest’ conduct as ‘corrupt’, and also reflect some universal moral sensibilities, seeming to suggest that corrupt acts are those which do not agree with some moral and social norms presumably of universal application.

The classifications used generally in anticorruption treaties and standards and national laws such as the UN Convention against Corruption and the Corrupt Practices and Other Related Offences Act to characterise these kinds of behaviour are: bribery, embezzlement (stealing), abuse of office, trading in influence, and illicit enrichment (another form of stealing).

The Corrupt Practices Act however uses analogous terminologies such as bribery, fraud, gratification and other related offences. Offences punishable under the Act include: wilful giving and receipt of bribes and gratification to influence a public duty, fraudulent acquisition and receipt of properties, deliberate frustration of investigation by the Independent Corrupt Practices Commission (ICPC), making false returns, making of false or misleading statements to the ICPC, attempts, and conspiracies.

All of the above highlighted unresolved cases of corruption would clearly fall under any of the classifications under the UN convention or the Corrupt Practices Act. This is a no-brainer, really.

What President Jonathan called ‘common stealing’ is what I referred to in my new book (Corruption and Human Rights Law in Africa) as “the deliberate, intentional mass stealing of public wealth and resources by senior state officials entrusted with its fair and honest management for the common good and achievement of human rights, whether carried out individually or collectively, but with the support, encouragement, or acquiescence of the state, combined with a refusal to genuinely, thoroughly and transparently investigate and/or prosecute the mass stealing and recover stolen assets, which violates the human rights of the economically and socially vulnerable.”

Let me say a bit more about why I think the ‘over 70% thesis’ is at odds with legal rules and credible evidence of corruption and its devastating consequences on the effective enjoyment of human rights in the country.

That there is corruption in the country is beyond doubt, especially if it is considered that Nigeria was ranked 144 of the 177 countries on Transparency International’s 2013 Corruption Perceptions Index (CPI). Nigeria has ranked very poorly in Transparency International’s CPI for many years, and the US State Department Country Report for 2012 illustrates the inte­grated problems of corruption, money laundering, poverty and lack of respect for human rights in the country.

But the government would readily dispute this evidence. The government in fact once said that, “Perception is different from reality.” Yes, the CPI may not be perfect but no index is. Even so, perceptions may provide a pointer as to the real evidence of corruption. In any case, while real evidence of corruption may be difficult to obtain (in part because of the secretive and complex nature of corrupt acts and the fact that those who perpetrate corruption rarely admit to doing so), its devastating effects across the country are too glaring to ignore.

If it is true that knowledge comes from seeing, most Nigerians will ‘know corruption when they see it’: whether it is in decayed infrastructure, weak and inaccessible health and education systems, crumbling and poorly maintained roads, lack of regular and uninterrupted electricity supply, or rampant violent crime, insecurity (and the slow response to Boko Haram’s abduction of hundreds of Chibok school girls) and entrenched impunity of perpetrators.

As a matter of fact, citizens’ anger at corruption by high-ranking public officials has never been so intense.

It is clear that corruption is the biggest obstacle to alleviating poverty and enjoying human rights in the country. If this government is serious about combating poverty and achieving basic human rights for millions of vulnerable and marginalized Nigerians, it has to publicly acknowledge the prevalence of high-level official corruption in the country.

While the country’s many human rights problems can be linked to bad leadership and gross incompetence, high-level official corruption is without question a big part of it. This kind of corruption fundamentally contrasts with even a minimal notion of the rule of law, and the idea of government as a public trust.

As Justice Mark L Wolf, who has made a strong case for an International Anti-Corruption Court stated, “Corruption is an insidious plague that destroys the capacity of government to protect and improve the plight of the people it is constituted to serve.”

It is difficult to imagine a greater breach of trust than when senior public officials entrusted with the peo­ple’s wealth and resources then turn around to use their public entrusted position to steal people’s resources with impunity (basically turning public treasury into a private ‘cashbox’).

Clearly, the ‘over 70% thesis’ can inadvertently lead to watering down the fight against corruption and creating wider wiggle-room for high-ranking politicians and would-be corrupt officials. It can also lead the citizens to lose confidence in the government’s ability to combat corruption. And as experience has taught us, loss of confidence can do terrible things.

As George Mason, the ‘Father of the United States Bill of Rights’ once warned, “If we do not provide against corruption, our government will soon be at an end.”  In order to reverse the damaging effects of the ‘over 70%’ thesis, several things need to happen; firstly, the president should publicly acknowledge high-level official corruption as a major problem confronting Nigeria, and that corruption is both illegal and immoral.  It is absolutely important to lay to rest the implicit assumption that there is no corruption in the country.

The government should care more about combating corruption rather than strenuously attempting to deny or justify it. Secondly, there needs to be a consistency of approach and messaging in the fight against corruption.

Transparency is the best weapon in fighting corruption, and the president can lead the way by making public his asset declaration. It’s a seemingly easy thing to do. And the president won’t be breaching any legal rules for doing this.

Leadership by example is urgently needed if the government is to show to the citizens that corruption does not pay, and if corruption is to be combated in public sectors, such as the police, prison service, health service, and local government, as well as in the private sector.

As former President Olusegun Obasanjo once said, “Fighting corruption is not a one-night affair. Of course there are deep-rooted interests, and if you are going to deal with it, you have to deal with it consistently [and truthfully]. If you deal with it today and you then turn a blind eye tomorrow, it will come back with vengeance.”

While Obasanjo may not have practised what he preached, this government will do well to heed his advice.

Olaniyan, author of ‘Corruption and Human Rights Law in Africa’, is Legal Adviser, International Secretariat of Amnesty International, London.