CRIMINAL LAW 2.14 THE OFFENCE OF BRIBERY AND CORRUPTION
The need to promote integrity and impartiality in the administration of public affairs is necessary to preserve public life and development of the society as a whole.
Definition of corruption: There is no universally accepted definition for corruption. “corruption” emanates from the Latin verb “corruptus” meaning “to break”. Encarta dictionary defines corruption as; “dishonesty for personal gain”.
The World Bank sees it as “abuse of public office for personal gain” (This definition seems to limit corruption to public officers).
Transparency international (TI) defines it as the “abuse of entrusted power for private gain”.
Section 2 of the ICPC (Independent Corrupt Practices and other Related Offences Commission) Act defines corruption to include bribery, Fraud and other related offences. Chapter 12 of the Criminal Code fails to define what bribery and corruption is. The EFCC Act fails to define corruption but provides for the various corrupt act. Various international treaties also fail to define corruption but elucidate on the elements and the various acts that can amount to corruption.
Article 1 of the Code of Conduct provides that a public officer should not allow his personal interest to conflict with the performance of his duty.
Section 98, 98 A and 98 B of the Criminal Code revolve around bribery involving a public official. Section 115-119 of the Penal Code. It must involve a public officer. The penal code uses the word “public servant”.
Section 1 of the Criminal Code defines a public officer as any person employed in the public service. Section 8 of the ICPC Act which is impari materia with Section 98 of the Criminal Code uses the word “any person”. However, the subsequent provisions of the same Act seem to refer to public officers. Section 9 and 10 of the ICPC Act is also similar to Section 98A and 98B of the Criminal Code.
For bribery of a Private officer, we can seek the provisions of Section 494 of the Criminal Code.
SECTION 98: (the demand side of bribery): Actus reus being asking or receiving (or attempt) benefit of any kind for himself or another person. The mens rea being: corruptly asking for or receiving a benefit on account of anything already done or omitted to be done in the discharge of his official duties.
Section 98A (the supply side of Bribery): the actus reus is; giving, conferring or promising benefit of any kind to a public officer. the mental element is; corruptly giving or promising a benefit on account of an act, omission or favour of (or on the part of) a public officer.
:: It is immaterial that the public officer did not subsequently perform the duty.
:: All asking and giving must have been done “corruptly”.
There has been several attempts to define the phrase “Corruptly”.
Bairamian J in Biobaku V Police observed that the public service is expected to carry out its duties impartially. Where some benefit is offered or received as a reward or inducement to “sway or deflect” the officer from the honest and impartial discharge of his duties. Meaning that the receipt of bribe made the officer to act partially.
Nicholas J in S V Deal Enterprises noted that corrupt intention is to be construed from the facts of the case, the time, manner and amount given. Whether the gift is given in open or in secret.
Lissack and Horlicks outlined 11 guiding principles that would help in determining corrupt intention. They are stated below:
– Whether the motive behind the gift is to induce or reward the improper performance of a public duty.
– Whether the gift is given in open or secret. Where given in secret, suspicion may arise. The Code of Conduct for Public Officers provides that a gift to a public officer in a public ceremony shall be deemed to be the gift to the institution he represents. Thus where the officer refuses to disclose the gift, corrupt intention can be inferred.
– An unrecorded or incorrectly recorded gift may infer corrupt intention.
– The value and frequency of gifts to the same person shall be taken into account. Because psychologically, humans are moved to repay a favour.
– The gift given should not be contrary to the local law of the place it was given.
– A stronger inference may be drawn where there is NO pre-existing friendly or filial relationship between the donor and the public officer. If it is a gift in the private domain, or in purely social context. The law should not extend. For example, Article 6 of the Code of Conduct provides that a public officer can receive gifts from family members and on occasions recognised by customs.
– The use of cash or cash equivalents (sexual gratification and the likes) may raise a presumption of bribery. Cash has been labelled the badge of bribery because it is usually difficult to trace.
– Solicitation for gifts by the officer should be a “red flag indicator”.
– Giving and receiving gifts can be part of normal business courtesies. Nicholas J in S V Deal Enterprises noted that so long as there is no corrupt motive.
– The payment should be considered in the light of the relationship between the parties and whether the payment is moderate or disproportionate to their resources.
– Gifts are given at certain occasions and seasons depending on the country, culture and season. For example Christmas hampers and cards are usually given during festive seasons. But Section 16 of the ICPC Act provides that the fact that a gift is customary does not constitute a defence.
:: The essence of all these inference can be found in the rule against interest and bias. Where right minded people leave with the notion that there has been partiality/bribery after witnessing the act.
:: The Money Laundering Act provides certain limits to the amount of cash withdrawal. This is in a bid to prevent squandering money obtained from illegal means.
:: The Public Complaints Commission was also established to check corruption by entertaining and investigating complaints and reports against public officers relating to extortion, demand for gratification and improper performance of their duties.
:: For Bribery of a private officer or his agent who collects bribe on his account, Section 494 of the Criminal Code provides 7 years.
:: The UK Bribery Act 2010, creates one offence of bribery whether public or private this is suggested for our criminal code because there is no need to divide the offences when both of them attract the same punishment of 7 years.
:: Section 98 of the Criminal Code provides a presumption of “corrupt receipt” where there is proof of receipt from a person seeking to obtain a contract, licence or permit or a person concerned or likely to be concerned in a proceeding. Except evidence to the contrary can be adduced. In Ogbu V R, the court found corrupt intent when a man paid money to induce an officer to appoint him as village head.
:: It has been held that there is no need to intend pecuniary benefit. In R V Smith, the accused offered bribe to the public official for the purpose of entrapment and to expose corruption in the public sector. He was convicted.
By Section 99 of the Criminal Code, where a public officer accepts from any person for the performance of his/her duty any reward beyond his proper pay is guilty of a felony. 3years. Compared to the 7 years provided in Section 98.
In R V Ijeoma, the accused, an acting superintendent of police demanded and received some money from the woman before releasing the police report on an accident in which the complainant’s vehicle was involved. The court held that since the officer received it in the discharge of his duty not in an illegal way, he could not be guilty of bribery but he could be charged under Section 99.
However, in practice, the dividing line is thin because most of the work public officers engage in can be seen as discretionary.
- Lindgren’s article on; The Elusive Distinction Between Bribery and Extortion from the Common-Law to the Hobbs Act. Would be instructive to this discussion.
Extortion in ordinary parlance can be seen as obtaining something by unacceptable methods like force. Blackstone defines extortion as unlawfully taking (a thing of value from another) by colour of public office. Hawkins defines extortion as a public officer taking money which is more than his due by colour of his office.
Extortion has been divided into two:
- Coercive extortion (the use or threat of force to obtain a benefit from another)
- Extortion under the cloak of office.
Bribery and “extortion under the cloak of office (though separate) seem overlapped. The court in Osidola V C.O.P distinguished between the two… noting that while extortion injures the individual who is made to yield to it, Bribery injures the common weal. In the offence of bribery, the paying party is also an accomplice while in offences of extortion, the paying party is a victim.
In Evans V United States, the court also noted that in extortion, the person paying is a victim and he feels compelled to pay unlike in bribery where the person paying has corrupt intention. However, Section 23 of the ICPC Act imposes an obligation on a person to report the public officer who asks for gratification else stands liable to 2 years imprisonment.
:: Section 404(1a) provides for the offence of demanding property corruptly under the colour of his employment. 5 years imprisonment. In Ogbebor V COP and Nwachukwu V COP the court held that “under colour of his office” requires some element of pretence by the public officer that he is entitled or has a duty to receive the money.
In R V Eka, a native court sanitary inspector threatened a village headman to give him money, a goat and five yams else he was going to report the condition of the village and lock the village headman in prison. The court suggested that the charge should have been brought under Section 404.
:: In Potts Johnson V R, a lady welfare officer threatened three prostitutes that unless they paid her certain sums of money, they would be repatriated. She was convicted under Section 404.
Section 99 captioned “extortion by public officers” should have been termed; illegal gratuity.
In conclusion, the distinction between bribery and extortion has been abolished under the UK Theft Act. Nigeria is advised to follow the same trend as the offence on extortion does not appear to have a separate, distinct sphere nor does it add true value to the law on corruption rather, it creates an academic problem in discussion and distinction as seen above