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PASSAGE OF THE ACT

ICPCC ACT AND RELATED LAWS: MAIN PROVISIONS, PRACTICES, CHALLENGES OF ENFORCEMENT AND SUGGESTIONS FOR REFORMS. PASSAGE OF THE ACT.

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PASSAGE OF THE ACT

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  1. ICPCC ACT AND RELATED LAWS: MAIN PROVISIONS, PRACTICES, CHALLENGES OF ENFORCEMENT AND SUGGESTIONS FOR REFORMS

  2. PASSAGE OF THE ACT • The Corrupt Practices and Other Related Offences Act 2000 (ICPC Act) came into force on 13th June 2000. President OlusegunObasanjo in signing the bill in law said; • “…all of us know that the scourge of corruption has eaten deeply into the fabrics of both public and private transactions in our country, that it had become impossible to contemplate and plan for our regeneration without first tackling it………. For those who are tempted to believe that our struggle against corruption is utopian, let me remind them that corruption is not only illegal, it is bad because it corrupts the soul of our community. It makes nonsense of all planning and budgeting”

  3. PURPOSE OF THE ACT • The purpose of the Act is clearly spelt out in the Short Title to the Act, which states that; “The Act seeks to prohibit and prescribe punishment for Corrupt Practices and Other Related Offences. It establishes an Independent Corrupt Practices and Other Related Offences Commission vesting it with the responsibility for investigation and prosecution of offenders thereof. Provision has also been made for the Protection of anybody who gives information to the Commission in respect of an offence committed or likely to be committed by any other person”.

  4. MANDATE OF THE COMMISSION The mandate of the Commission is to banish all impunity for corrupt practices and other related offences; Prevent corruption and other related offences through:- • System study and review • Education • Public enlightenment • Public mobilization, and • Investigation and prosecution

  5. VISION AND MISSION OF THE COMMISSION • The vision of the Commission • ‘A Nigeria free from all forms of corruption and corrupt practices’ • The Mission of the Commission • ‘To rid Nigeria of corruption through lawful enforcement and preventive measures’

  6. OFFENCES UNDER THE ACT

  7. PUNISHMENT • The penalties provided by the Act ranges from one year to ten years. Only a few provisions of the Act have payment of fine as an option., while some provisions have payment of fine as additional penalties to prison terms. The drafters of the act viewed giving of false information to the Commission seriously and the offence carries the stiffest penalty under the Act, imprisonment for ten years. (See Section 64 (3) of the Act.

  8. SPECIAL PROVISIONS OF THE ACT • Section 8 (a) – (b) and 9 (2) (a) – (b) of the Act, provide that any property, benefit of promise given or received by an official shall be presumed to have been given or received corruptly on account of a past or future act, omission, favour or disfavour unless the contrary is proved. This provision places the burden of proof on the accused to disprove any alleged gratification. Section 8(3) of the Act provides that in a charge of gratification, it shall not be a defence that the accused did not subsequently carry out the act solicited or never intended to perform the act promised.

  9. SPECIAL PROVISIONS OF THE ACT (CONT) • Also, under S. 8(4) when a police officer or any public officer assigned to detect, prosecute or punish offenders is charged with an offence arising from his duties to investigate, arrest, detain or prosecute any person, it shall not be necessary to prove that the accused believed that an offence had been committed under the act. In other words it will not be a defence for the accused to say he believed an offence has been committed though it was subsequently discovered no offence had been committed.

  10. SPECIAL PROVISIONS OF THE ACT (CONT) • Section 12 of the Act makes it an offence for any public officer to award a contract to himself, or his agent except the company is a joint stock company of more than twenty shareholders. • In Section 15 of the Act, it is an offence for any person who with intent to defraud or conceal a crime or frustrate the investigative activities of the Commission, destroys, alters, mutilates or falsifies any book, documents valuable security, account, computer system in his possession by virtue of his position.

  11. SPECIAL PROVISIONS OF THE ACT (CONT) • It is also an offence under Section 16 of Act for any person charged with the receipt, custody, use or management of any part of the public revenue or property of knowingly furnish any false statement or return in respect of any money or property received by him or entrusted to his care or any balance of money or property in his possession or under his control. • By virtue of these provisions public officers who tamper with records kept in their care in order to conceal a crime and obstruct investigation as well as those who furnish false statements or retunes will be apprehended and prosecuted.

  12. SPECIAL PROVISIONS OF THE ACT (CONT) • Section 19 is the omnibus section punishes any officer who uses his office or position to confer and unfair or corrupt advantage on himself, friends or relatives. This is novel in Nigerian Criminal Law and practice. An officer who awards contract to his relative or appoints his child to a job stands the risk of being prosecuted for and offence under the Act.

  13. SPECIAL PROVISIONS OF THE ACT (CONT) • Section 22 (3) of the Act provides that; • “Any Public officer, who, in the course of his official duties, inflated the price of any goods or service above the prevailing market price or professional standards, shall be guilty of an offence under this Act and liable on conviction to imprisonment for a term of seven (7) years and a fine of one million Naira. • This is to address the brazen inflation of prices of goods and services by unscrupulous public officers.

  14. SPECIAL PROVISIONS OF THE ACT (CONT) • Section 22 (4) of the Act states that; • “Any public officer who in the discharge of his official duties, awards or signs any contract without budget provision, approval and cash backing shall be guilty of an offence under this Act and on conviction be liable to three (3) years imprisonment and a fine of one hundred thousand Naira” • Section 22 (5) provides as follows; • “Any public officer who transfers or spends any sum allocated for a particular project or service, on another project or service, shall be guilty of an offence under this Act and on conviction be liable to one (1) year imprisonment or a fine of fifty thousand Naira.

  15. SPECIAL PROVISIONS OF THE ACT (CONT) • The above sections are intended to promote fiscal discipline and are novel in our criminal laws. Gone are the days where chief executives of MDAs spend government funds with impunity. There must be strict adherence to budgetary provisions.

  16. PROTECTION OF INFORMERS • There are specific provisions in the act designed to protect informants/petitioners, because information is very crucial in fighting crime especially corruption. Informers will readily cooperate if they know they will be protected. The Act protects both the information received and the identity of the informant/petitioner [Section 64 (1) (2)]. • Even when proceedings have begun in the courts the identity of an informant is still to be protected if the need arises. Section 64 (2) • The commission respects the sanctity of information it receives as well as the sanctity of the informant.

  17. GIVING FALSE INFORMATION • It should be noted, however, that giving false information, to the Commission is a punishable offence. A false informant if convicted may be imprisoned for a term not exceeding ten years in addition to a fine not exceeding one Hundred Thousand Naira. [Section 64 (3)]. But please do note that giving information impelled by an honest belief and knowledge may not quality as false information but I would say this may depend on the circumstances and merits of each case. Therefore while the Commission solicits for information from the public to fight corruption, it cautions against false information driven to serve ulterior purposes.

  18. PRESUMPTION AGAINST OFFENDERS • Section 53 (1), (2) & (4) of the Act raise weighty presumptions against offenders who are being prosecuted for offences specified under section 8 to 19 for accepting, receiving, agreeing to accept or to receive gratifications etc. Such gratifications are presumed to have been corruptly accepted or agreed to be accepted or given. • Once it is proved that gratification was received, that burden to prove that it was not corruptly received is on the accused person or alleged offender. It is not an excuse to explain that acceptance of such gratification or gifts are customary. Section 60 of the Act is very clearly on this: • This provision is particularly important because it is now the trend to give highly placed public officials expensive gifts like cars, all expenses paid trip abroad, houses, for trivial celebrations like birthdays etc. Some officials are offered membership of exclusive clubs all for improper motives

  19. FORFEITURE OF PROPERTY BY THE COMMISSSION • The provisions of sections 47 and 48 of the Act cover forfeiture of properties by the Commission. These are very interesting provisions. Forfeiture of properties by the commission is categorized into two; forfeiture of properties upon prosecution [ i.e. criminal forfeiture] and forfeiture of properties where there was no prosecution [civil forfeiture].

  20. DUTY TO REPORT BRIBERY • Failure to report an offer of gratification is a serious offence under the Act. This is a special provision in the Act. Sections 23 (1) & (2) of the Act imposes a duty on everyone to report a demand or promise of gratification to the nearest officer of the Commission or a police officer.

  21. Dealing with, Using, Holding Receiving or Concealing Gratification • Any person who does any of the above whether for himself or on behalf of others in respect of any property the subject matter of certain offences under the Act will be guilty of an offence. This is irrespective of whether the transaction was carried within or without Nigerian [Section 24]. • In other words, the section punishes those who launder the proceeds of corruption. So be wary of handling transactions or business for those whose source of income or prosperity you are not very sure of.

  22. Challenges of Enforcement • FEDERALISM: Section 2 of the 1999 constitution creates Federal, States, and Local Governments, while sections 4 – 6 of the constitution divides powers between the Federal, States and Local Government councils. • From the inception of the Commission, it has been plagued with civil suits challenging the validity of the ICPC Act and the powers of the Commission to investigate state governments and their officials. • A. G. Ondo State & Ors v A. G. Federation & Ors (2002) 9 NWLR (Pt 772) Pg 1 • Suit No. PHC/114/2014 A. G. Rivers State v Speaker Rivers State House of Assembly &37 Ors. • Suit No. FHC/AD/CS/32/16 A. G. Ekiti State v Economic and Financial Crimes Commission & 17 Ors • Suit No. FHC/UY/CS/20/17 A. G. Akwa Ibom State v The Speaker Akwa Ibom State House of Assembly & 13 Ors

  23. Challenges of Enforcement • However in the following cases the judges have firm stated that they cannot re-litigate on the on the issue based on the decision of the Supreme Court in A. G. Ondo State & Ors v A. G. Federation & Ors: • SUIT NO. FHC/PH/CS/482/2010:Port Harcourt Local Government Council and Ors v Economic and Financial Crimes Commission and Ors. Hon Justice T Abubarkar • Suit No. FHC/S/CS/20/15 A. G. Government of Sokoto State v EFCC, ICPC, IGPand NIA

  24. Challenges of Enforcement • THE ICPC ACT 2000 • Section 63 (3) OF THE ICPC Act 2000 empowers the Chief Judge of a state and the Federal Capital territory to designate a court or judge or such number of judges to determine and hear case brought pursuant to the Act. • See also section 26 (2) of the Act • This has limited the prosecution of offences under the ICPC Act to States’ High Court. • The Commission in its proposed amendment of the Acrt before The National Assembly is proposing that the Commission prosecutes in both Federal and States’ High Courts

  25. OTHER RELEVANT/RELATED LEGISLATIONS THE EFCC ACT 2000 • The EFCC Act was passed in 2004 • The Act gives the EFCC very extensive powers that need to be understood. • These powers give the EFCC comparative edge over other LEAs on investigations especially and prosecutions. • A few of these will be outlined later for your better understanding.

  26. THE EFCC ACT • Section 6 (a) – (q), including (j)(i)-(vi) outlines the mandate of the EFCC, too lengthy to serialise here. • Section 13 further grants special duties of asset investigation and recovery, and prosecution • Section 31 grants the power to dispose of by sale or otherwise, of forfeited property • Section 38 grants power to receive information without let or hindrance

  27. THE EFCC ACT • The Act creates: • Offences of financial malpractices (section14(1)-(3). • Offences Relating to Terrorism (section 15(1)-(3) • Offences relating to false information (section 16(1)-(3) • Offences relating to economic and financial crimes (section 18(1)-(2) • In addition to the above, the Act hands over to the EFCC 6+ laws that pre-existed EFCC to handle (see s.7) • So when people say EFCC and ICPC are doing the same thing, they do not understand the scope of their separate powers

  28. THE EFCC ACT • The full extent of the investigative powers of the EFCC can only be appreciated by a thorough study of all the laws they enforce. • Each of these laws, passed at different times, indeed some during military regimes, had enormous powers. • Consistent all through is the jurisdiction of the Federal High Court as court of destination

  29. THE EFCC ACT • Section 1(1) of the Act establishes the EFCC as a body. • Section 1(2)(c) provides that the EFCC is the designated Financial Intelligence Unit (FIU) in Nigeria which is charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes.

  30. THE EFCC ACT (FIU FUNCTIONS) • The provision made EFCC the designated FIU for Nigeria. This meant, in the past \ all financial intelligence reporting were made to the EFCC by banks and other financial institutions • Non-designated financial institutions (clubs, gambling houses, jewellery sellers, etc) report to SCUML which though domiciled in the Federal Ministry of Commerce, is staffed by EFCC personnel. • The import of this was that EFCC had direct access to records of all financial transactions in all banks, financial institutions and non-designated financial institutions. • However, with the enactment of the NFIU Act 2018, the NFIU is now an independent body outside the EFCC. The Act makes the Unit an independent body but domiciled in the Central Bank of Nigeria

  31. THE EFCC ACT (MANDATE) • Section 6 of the Act provides the unwieldy mandate of the Commission. These powers are very extensive and include: • Investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc (6(b) • The coordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority (6(c) • Avoided the word ‘corruption’ throughout

  32. THE EFCC ACT (MANDATE) • The adoption of measures which include coordinated preventive and regulatory actions…(6(f) • Taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes (6(m) • The coordination of all existing, economic and financial crimes investigation units (anywhere) in Nigeria (6(n).

  33. THE EFCC ACT (MANDATE) • By the Section 7, the EFCC enforces: • The EFCC (Establishment) Act • The Money Laundering Act • The Advanced Fee Fraud Act • The Failed Banks (Recovery of Debt and Financial Malpractices in Banks) Act • The Banks and Other Financial Institutions Act, 1991 • Miscellaneous Offences Act; and • Any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code

  34. COMPARATIVE ANALYSIS OF ICPC&EFCC ACTS • For EFCC, there is no mention of bail in the Act. Indefinite detention? Not so. • But the other Acts EFCC enforces have bail provisions. • Under the ICPC Act, there is no mention of compounding offences except if reliance is had on the discretion created in s.6(a) – (appropriate cases) • The EFCC can compound offences – probably the ground they relied on before the ACJA 2015 to do plea bargaining (Section 14(2). This compounding power is also available in the other laws enforced by the EFCC (see s.65(a) BOFIA. • There is no plea bargain under the ICPC Act. However, by virtue of Administration of Criminal Justice Act, it is now part of the Nigerian Legal system.

  35. COMPARATIVE ANALYSIS OF ICPC&EFCC ACTS • Again, prosecution is governed by Procedure laws. • The ICPC Act in Section 61(3) provides for trials of all cases before state high courts. • The EFCC Act in section 19 grants jurisdiction for trial of cases by the Commission on both Federal and State High Courts (including the High Court of the Federal Capital Territory)(see also s.19 Money Laundering (Prohibition) Act 2004). • The advantage of trials before Federal High Court is better imagined

  36. COMPARATIVE ANALYSIS OF ICPC&EFCC ACTS (PROSECUTION OF CASES) • In addition, section 19(2) imposes accelerated hearing for all matters and adoption of all measures to avoid unnecessary delays and abuse in the conduct of matters brought by the Commission before the courts. • By subsection (4) of s.19 designated courts/judges are to give EFCC cases priority over other matters pending before them. • Accelerated hearing runs across all the laws enforced by the EFCC (see e.g. s.17 Failed Bank Act which mandates day to day trials) • see also Sub. (5).

  37. COMPARATIVE ANALYSIS OF ICPC&EFCC ACTS (PROSECUTION OF CASES) • Regulations for prosecution under the ICPC Act are provided under sections 53 – 64 • The Act also attempted in Section 26(3) to provide the semblance of accelerated hearing by requiring all prosecutions to be concluded within 90 working days … but the Supreme Court expunged that and it is no more part of the law. • Also, similar to the EFCC Act, the ICPC Act sought to provide accelerated hearing by requiring designated judges not to hear any other matters while they remain designated (section 61(3). In practice this has not been the case.

  38. CODE OF CONDUCT BUREAU & TRIBUNAL ACT • Established by section 153 of the 1999 Constitution of the Federal Republic of Nigeria • According to section 2 of the Act, the aims and objectives of the Bureau shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability

  39. CODE OF CONDUCT BUREAU & TRIBUNAL ACT • To achieve this: • the Bureau is to receive assets declaration by public officers in accordance with the provisions of the Act • Examine the assets declarations and ensure that they comply with the requirements of the Act and of any law for the time being in force; • Receive complaints about non-compliance with or breach of this Act and where it considers necessary refer the complaints to the Tribunal (for prosecution)

  40. CODE OF CONDUCT BUREAU & TRIBUNAL ACT • prohibits the operation of foreign accounts by public officers • prohibits public officers from asking for, receiving any property or benefits of any kind for themselves or for any other person on account of anything done or omitted to be done by him in the discharge of his duties except from relatives or personal friends, and such subject to the extent and on occasions as are recognised by custom; but it allows gifts to a public officer on ceremonial occasions provided that they are deemed gifts to the organisation and not the individual (s.10)

  41. CODE OF CONDUCT BUREAU & TRIBUNAL ACT • prohibits all public officers, including those with constitutional immunity, from accepting loans other than from recognised government and corporate institutions but allows heads of public institutions to accept subject to the rules and regulations of the issuing organisation (s.11). • prohibits offer to public officers any property, gift or benefit of any kind as inducement or bribe for the granting of any favour or the discharge in his favour of the public officer’s duties (s.12) • prohibits public officers from abusing their powers/office by doing or causing to be done any act prejudicial to the rights of any other person where such acts are unlawful or contrary to government policy

  42. CODE OF CONDUCT BUREAU & TRIBUNAL ACT • prohibits membership of societies whose membership is incompatible with the functions or dignity of office (s.14) • mandate all public officers to declare their assets every 4 years, or at the beginning and end of term of office or as may be subsequently specified by the Bureau s.15) • grants the President power to exempt any cadre of public officers from below a certain rank (to be determined by him) from compliance with the Act • establishes a Tribunal with judicial powers to try breaches of the Act

  43. CONCLUDING QUESTIONS AND THE WAY FORWARD Have legislations helped instil or increase an integrity culture in our society and governance? Have the institutions established to combat and/or prevent corruption achieved their mandate?

  44. CONCLUDING QUESTIONS AND THE WAY FORWARD • If not, what is missing? • Political will? • Strong institutions and systems? • Poor and lack of intensity of law enforcement? • Impunity fuelled by surety of apprehension? • Lack of leadership by example (absence of ethical leadership and support)? • Cultural acceptance of aberrant behaviour?

  45. CONCLUDING QUESTIONS AND THE WAY FORWARD • What is the way forward to remedy the situation? • There must the presence of the political will to tackle the problem • There must be the presence of the Rule of Law • The letters of the law must be applied and implemented strictly to all irrespective of the status • We must learn to build strong institutions and systems and not persons

  46. CONCLUSION • From the above, I hope we now know the extent of the powers of the ICPC and the EFCC. I believe if we as a people decide to follow the path of integrity and good moral behaviour, we would not be talking of the failures in implementing our laws THANK YOU

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