How the Mandate of the ICPC Affects Civil/Public Servants Officers In Ekiti State

1. How the Mandate of the ICPC Affects Civil/Public Servants Officers In Ekiti State By Prof. Bolaji Owasanoye Chairman, Independent Corrupt Practices and Other Related Offences Commission, Nigeria (ICPC).

2. Outline • The Question of Corruption • Definition and forms of Corruption • Costs of Corruption • Taxonomy of Ekiti State • Ease of Doing Business in Ekiti State • Public Office and Public/Civil Servants • Corrupt Practices and Other Criminal Acts of Civil Servants • ICPC Act and its Applicability – AG Ondo vs AG Federation (2002) • ICPC and its Mandate • Case Studies • Suggestions • Conclusion

3. The Question of Corruption • Corruption is ubiquitous and not ascribed or existential to particular jurisdictions and cultures. • Corruption exists in all nations regardless of the development, legal framework, political and socio-economic dynamism or religious taxonomy. • Corruption affects private and public individuals and takes no account of wealth, destitution, age, gender or society. • Corruption destroys reputations of nations and private individuals, initiatives and lives

4. The Question of Corruption • Corruption is so grave a crime some consider it a crime against humanity (Soni & Karodiha, 2017) • Nigeria like many countries, suffers from systemic and bureaucratic corruption with adverse effects on the people and the nation. • Successive governments since independence came up with various policies and programmes against corruption • The present government has anti-corruption as one of its cardinal programmes.

5. Definition of Corruption • Corruption is derived from the Latin corruptio and means falsity, crookedness, deformity, impurity, iniquity, deterioration, perversion, adulteration etc. • Corruption is the abuse of entrusted power for private gain. It may be classified as grand, petty, political, etc depending on the sums lost and the sector where it occurs (Transparency International, 2000) . • Corruption is the active or passive misuse of powers of public officials (appointed or elected) for private financial or other benefits (OECD, 2002) • Corruption is the abuse of public or corporate power for private gain (World Bank, 2005)

6. Forms of Corruption • Corruption may not be properly confined to a single definition due to its nebulous nature and universality. • These include gratification, bribery, extortion, fraud, stealing, and embezzlement, criminal, diversion of funds, kickbacks etc. • Corruption manifests in cronyism, favoritism, nepotism, influence peddling, and parochialism. • Other forms include forgery, uttering, false accounting, false representation,

7. The Costs of Corruption • Corruption affects everyone negatively and gravely • Destroys ethical and moral values • Compromises security, justice and rule of law • Deprives the people of their economic, social and constitutional rights • Breeds distrust, unemployment, violence

8. The Costs of Corruption • Corruption breeds poverty as it diverts resources from programmes supportive of poverty reduction • Corruption steals and hampers effective resource allocation and deployment • Corruption fuels tribal distrust and conflicts due to illegitimate resource allocation • Corruption undermines state development and infrastructure due to skewed procurement processes and payments

9. Taxonomy of Ekiti State, Nigeria According to the Bureau of Statistics, Ekiti State 2006 population figure of 2,384,212 grew to a projected figure of 3,2770,789 in 2019. While the Budget Estimate for the State in 2018 was N108, 538, 072, 813.02, the approved budget for 2019 is N129,924, 472, 135.01. Only N10, 817, 221, 596. 42 of the 2019 budget constitutes Internally Generated Revenue (IGR) • The focus of the 2019 Budget are: • Social investment; • Knowledge economy; • Infrastructure and industrial development; • Agriculture and rural development.

10. Taxonomy of Ekiti State, Nigeria The fundamental and broad objectives for sustainable development includes: • Revamping of the state economy; • Completion of ongoing projects; • Improve IGR; • Strengthen human resource base through qualitative education and health care delivery regardless of status and political affiliation; • Improve Ease of Doing Business, and improve enabling socio-economic environment; • Restoration of values; • Provision of enabling environment for food security and agro-allied industries;

11. Taxonomy of Ekiti State, Nigeria • The stark reality is that generation of Internally Generated Revenue in Ekiti State is a challenge like many states in Nigeria. Consequently, there is huge dependence on allocation from the Federation Account. • There issue of accountability of IGR. The Judicial Commission of Inquiry set up in 1999 to investigate the finances of the State found that IGR “deductions made at various paying points were immediately paid by Chief Accountants of the Ministries etc. Big sums of money collected as deduction were generally left in the hands of these Chief Accountants.” (Omotoso, 2009).

12. Ease of Doing Business in Ekiti State • The Ekiti State Government has rightly chosen improvement of the climate for Ease of Doing Business in Ekiti State as one of its fundamental objectives. Table 1 depicts the ranking of Ekiti State in the World Bank report (2018) which compared Business Regulation for Domestic Firms in 36 States and FCT Abuja with 189 Other Economies as follows:

13. Ease of Doing Business in Ekiti State The Report stated that reform is making it easier to do business in Ekiti State. Ease of doing business is fundamental to generation of employment, poverty reduction and improvement of other socio-economic indicators. Ease of doing business is a corruption killer because it reduces opportunities for corruption and extortion.

14. Public Office and Public Servants • Public Office is public trust and demands the utmost of virtues • A public servant or officer is person who has been elected or appointed to office and who exercises governmental functions (Merriam-Webster Dictionary) • A Civil Servant is an employee of any of the three tiers of government or any of its agencies. • A Public Officer not only includes the individual (public officer) but also covers the office he occupies (the public office) – The Supreme Court in Ibrahim vs the Judicial Service Commission Kaduna State (1998)14 NWLR (PT 584) 1.

15. Public Servants and Civil Servants • Public/civil servants must be governed by honesty, accountability, transparency and equity in service. • Public/civil servants must within three (3) months of appointment and every four (4) years, submit to the Code of Conduct Bureau a written declaration of all his/her properties, assets and liabilities and those of spouse and unmarried children under the age of 18 years. • Breaches of the Code of Conduct (false, anticipatory declaration and other abuse of the Code) are to be made to the Code of Conduct Bureau. The Bureau has the power to investigate the alleged violations and institute an action at the Code of Conduct Tribunal (Ahmed v Ahmed (2013) 15 NWLR (Pt 1377) 27 (Supreme Court) • The Code of Conduct Tribunal has a narrow jurisdiction over corruption and wide powers over misconduct of a public officer (Ahmed v Ahmed (2013) Supra

16. Public Service and Civil Service • The Public Service comprises the civil service, statutory corporations, judiciary, legislature, educational institutions, Nigeria Police and Armed Forces and other agencies in which the Federal or state governments own controlling shares or interest. See Sections 169, 171, 172, 206 and 208 of the 1999 Constitution. • Section 318 (1)  of the 1999 Constitution defines civil service in Nigeria to mean service in a civil capacity of the  government and Public Service as service of the federation or state in any capacity of the government • The Public Service is the overarching body of government service which includes civil service, judicial service, armed forces etc. All civil servants are public servants but not all public servants are civil servants • The Public Service Rules are a set of laws guiding the conduct of public servants (including civil servants) for the effective and efficient performance of their duties (Okonkwo, 2014).

17. Public Service and Civil Service • Political office holders and senior public officers cannot steal, misappropriate or divert public funds holders, without the advice, consent, cooperation and support from civil servants – Sometimes difficult to prosecute public office holders because all records are traceable to the civil servant • Olu-Adeyemi, and Tomola (2010) posit that a conspiratorial relationship and pact exist between Political Appointees/ public officers and Accounting Officers with negative effects on public accountability and fiscal integrity • This alliance and understanding has led to unconscionable abuse of due process and theft of public funds. • Absence of public accountability widens opportunities for corrupt practices and abuse of office

18. Red-Flags and 4 Major Banana Peels • Where and How Do Public or Civil Servants Slip or Fall Often? • Banana Peel 1 – Public Procurement • Banana Peel 2- Contract Splitting • Banana Peel 3 – Capacity for Fiscal Management • Banana Peel 4 – Cultural Kolanut

19. Banana Peel 1: Public Procurement • Commonest source of default by public officers • Procurement is the use of public funds for the acquisition and delivery of public goods, works and services usually through a third party(contractor) • Ekiti State Public Procurement Law No4 of 2010 follows 5 key global elements of public procurement which Nigeria Law was modeled after: • disclosure of all rules that apply in the procurement process • publication of all opportunities • prior determination and publication of what is to be procured and how offers can be considered • visible conduct of procurement according to prescribe rules and procedures • A regulatory framework to ensure rules are followed viz. Ekiti State Bureau on Public Procurement

20. Corruption in Procurement • Public – Private sector malady • Supply and Demand Side Driven • Demand side - public officials demand bribes and/or benefits • Supply side – vendors/service providers corrupt those who can influence the outcome of a procurement process • Procurement offers opportunity to use contracts to reward people in government, serve political interests, assist friends and cronies, satisfy primordial sentiments • Open abuse of standards in award and execution of contracts • Over-invoicing, inflation of contracts, white elephant projects, diversion of public funds, etc. • Including projects in the budget for personal interests • Awarding contracts to companies registered by civil servants • Awarding contracts to un-qualified companies

21. Typologies 1. Bribery – directly or through intermediaries 2. Kickback - 3. Bid-Rigging 4. Undeclared conflicts of interest 5. Embezzlement 6. Facilitation payments 7. Fraud 8. Extortion 9. Informal networks 10. Nepotism 11. Patronage 12. Conflict of interest

22. Risk Factors • Corruption risk increases when - • contract is large size • complex technology involved • Sector is corruption-prone e.g. oil and gas • Excessive discretion in one officer or entity • Absence of financial controls • Restricted access to information • Links to funding schemes • Time pressure • Weak social controls • Conflict of interest. • The more money involved, the higher the potential for compromise

23. Banana Peel 2: Splitting Contracts • The division or breaking up of Government Contracts into smaller quantities and amounts, or dividing contract implementation into artificial phases or sub-contracts for the purpose of evading or circumventing the requirements of law, especially where public bidding and other alternative methods of procurement is required. • Bode George, former Chair of NPA served 30 month jail term for contract splitting and inflation of contracts. Though absolved by SC he served the term and the risk remains for public officers

24. Banana Peel 3: Fiscal Responsibility and Management Competence • Involves using financial resources wisely and making financial decisions in an open and transparent manner. • Ekiti State Fiscal Responsibility Law No.4 of 2011 applies. • Fiscal responsibility imposes limits on deficits, debts and expenditure and provides time limit for performing key duties and obligations • In light of FOI staff of MDAs can whistle blow on incompetent allocation of resources that leads to public embarrassment for the individual and government

25. The Freedom of Information Law No.10 of 2011 obliges public officers to provide information on their activities on request • The legal regime covers compulsory delivery and publication of information on: • documents containing the names, salaries, titles, and dates of employment of all employees and officers of the institution; • documents containing the rights of the state, public institutions, or of any private person(s); • documents containing the name of every official and the final records of voting in all proceedings of the institution; • It is a criminal offense for any officer or the head of any government or public institution to falsify or wilfully destroy any records.

26. Banana Peel 4: Cultural Kolanut • Para 6 of the Code of Conduct for Public Officers contained in the 5th Schedule to the 1999 Constitution prohibits public officers from accepting gifts or benefits in kind but excepts those recognized by custom. Where is the dividing line? • Para 8 of the Code of Conduct for public officers prohibits offering Nigerian public officers any property gift or benefit of any kind as inducement or bribe for the granting of favor or discharge of the official duties. • Para 10 of Part II of the 5th Schedule to the Const extends the code to all persons in the civil service of the Federation or of the State while para 16 of same Part II extends code to Chairman, members and staff of permanent commissions or councils appointed on full time basis. • If LS JSC members are full time, the Code applies

27. Other Forms of Corrupt Practices/Criminal Acts of Civil/Public Servants • Inflation of procurement /contract prices • Fictitious repairs and renovations • Transport and other travel expenses fraud • Concealing files and vital documents until beneficiaries make facilitation payments

28. Corrupt Practices and Criminal Acts of Civil/Public Servants • Job racketeering; • Sex for marks and other forms of “sorting”; • exam malpractices; • Budgeting for un-utilized materials and goods in store; • Abuse of office; etc

29. Corrupt Practices and Criminal Acts of Civil/Public Servants • Collusion between civil servants and contractors on false, ‘padded’ or inflated contracts • Theft of government revenue through false receipts and accounts • False and pseudo loans, mortgages and advances on behalf of the State • Ghost workers and pensioners • Collecting illegal payments from claimants to process legitimate payments and claims e.g. pensions, scholarships, death benefits to relatives of deceased staff

30. Corrupt Practices and Criminal Acts of Civil/Public Servants • Double employment and service • Proceeding on study without authority or leave – Normally covered up by unscrupulous superior officers • Sending official correspondence unknown to superiors or without consent and authority • Coming late to work or not appearing at all • Diversion of project support vehicles, computers and other materials and equipment

31. Corrupt Practices and Criminal Acts of Civil/Public Servants • Declaring false service records and staying beyond statutory period of service • Assisting public officers to make phony and fictitious claims, retirements and sequestrations • Forgery of educational certificates and resume etc • Making false and anticipatory asset declarations

32. Excuses and Justification of Corruption • Poor remuneration • Family and societal commitments and engagements • Examples of successful thefts by predecessors and colleagues • Encouragement by criminal contemporaries • Blackmail by superiors or colleagues • Lapses and loopholes - opportunities for corruption

33. ICPC Act and its Applicability AG Ondo State & Ors vs AG Federation (2002) 9 NWLR 222, (Pt 772) The Supreme Court ruled that: • The issue of corruption and abuse of power has become international, a declared state policy, and a high priority national issue • Corruption is a matter within the classes enumerated and expressly assigned to the National Assembly by section 15(5) and Item 60(a) of the 1999 Constitution. • By the definition of ‘state’ and ‘government’ in section 318 (1) of the 1999 Constitution, the directive under section 15 (5) of the Constitution that states should “abolish all corrupt practices and abuse of government” applies to all tiers of government.

34. ICPC Act and its Applicability • The power to legislate and prohibit all corrupt practices and abuse of government is concurrent and can be exercised by the Federal and State Governments by virtue of sections 49 (2); 4(4) (b) and 4 (7) (c) of the Constitution. • When the National Assembly and State House of Assembly legislate on same matter, the Federal Law will prevail by virtue of section 4(5) of the Constitution • The Federal and State governments have the responsibility of fighting corruption and ensuring good governance

35. The ICPC Act AG Ondo State vs AG Federation (2002) SC The Supreme Court in AG Ondo State Supra affirmed • The constitutionality of the Corrupt Practices and Other Related Offences Act 2000 as the National Assembly can legislate on corruption • Corruption is a national issue both state and Federal government may legislate on it but by the doctrine of ‘coveringthefield’ the Federal Act overrides any State law in this regard • The applicability of the Act in all States and parts of the Federation including Ekiti State • The Act by extension affects public and private officers or persons

36. The Corrupt Practices & Other Related Offences Commission ICPC - Mandate • Established by an Act of the National Assembly signed into law on 13 June 2000 • 3-pronged mandate – Enforcement s.6(a); Prevention s.6(b-d) and Education public education and engagement s.6(e-f) • Applies to public office corruption and in certain cases private individuals linked to public officers or projects • Commission can also investigate and prosecute cases of corruption under other laws prohibiting corruption in Nigeria

37. ICPC Enforcement Mandate • Prohibits any promise, demand, offer, and receipt of gratification • Forbids false statements, false accounting and false returns • Punishes auction fraud and procurement fraud • Prohibits the inflation of contract price or cost of goods or services beyond the market rate or professional standards • Prohibits – the transfer of funds appropriated and allocated for one project or service to another without requisite approval (virement) • Prohibits the award of contract by a public officer without budgetary provision, approval and cash backing • Punishes false petitions and reports

38. ICPC Enforcement Mandate • Vested with power to summon any person to produce documents or to declare source of questioned assets • Authorized to search persons, property and premises in prescribed form • Empowered to seize and recover assets suspected to be proceeds of crime • Permitted to freeze suspicious accounts in ant bank or financial institution

39. ICPC Preventive Mandate The Commission's preventive mandate is predicated on: • Prevention is better than cure and makes anti-corruption people friendly and compliance becomes routine • Prevention takes away the cost and stress of running after thieves to recover stolen funds and property (investigation and prosecution etc) • Prevention takes away the national embarrassment of making recoveries of crime proceeds - may impact negatively on foreign investors with impression that our public finance management is poorly managed and administered

40. ICPC Preventive Mandate • Corruption Risk Assessment (CRA) - seeks to identify vulnerabilities or weaknesses in an MDA which may present opportunities for corruption (Proactive tool). Focuses on the potential for corruption and not the perception, existence or extent of corruption • System Study and Review (SSR) - identifies corruption prone areas and make recommendation to MDAs to the block loopholes (Reactive tool) • Monitoring and Evaluation of Budget/Project Implementation (M&E) – Ensures that MDAs comply with approved Budgets and that projects are executed in compliance with due process • Deployment of Ethics and Compliance Scorecard – Measures institutional integrity and accountability and compare and analyze the weaknesses that make MDAs susceptible to corruption and rate the MDAs. • Over 110 MDAs reviewed between May and August 2019 More MDAs are being reviewed and may be throughout the year.

41. ICPC - Public Education Mandate • Public education and engagement • Anti- Corruption and Transparency Units (ACTUs) in Federal MDAs • National Anti- Corruption Coalition(NACC) for CSOs and NGOs, • Establishment of ACAN and its capacity building programs. • Good Governance Initiative - Town Hall meetings for LGAs etc. • Collaboration with other Anti-Corruption Agencies- EFCC, BPP, CSOs - joint rallies, seminars and conferences on anti-corruption

42. Case Studies • 5 Public officers in the Finance & Accounts, Department, Ministry of Public Orientation X State assigned with operating the Ministry’s accounts with Blackmore Bank agreed and transferred at different times N400m through 6 companies registered in their family members' names and presenting them as the Ministry’s contractors. Huge amounts of money were paid out of the Ministry’s account to those companies and then shared among the 5 public officials. When the ICPC confronted them with the petition, they denied knowledge of the theft and the pseudo-companies used as conduits for the fraud. The monies were later traced to assets and other properties owned by members of the syndicate and were seized in the course of investigation. The matter is undergoing non-conviction based proceeding for forfeiture of the assets and criminal prosecution of members of the syndicate is pending at the High Court of the State.

43. Case Studies • The Governor of D State, Western Nigeria, awarded a 30m contract for gardening and flowering in the capital city. The contract was awarded to a private company owned by the Governor’s friend. The contract was not executed and a petition was lodged with the Commission by a concerned citizen. Upon investigation the Commissioner of Works was indicted and charged to court. He resolved to settle the matter by paying back the full sum of the contract to the Commission’s recovery account. He claimed the Governor guided the contract and personally received the money. But no records was presented to support this.

44. Case studies • A 35 year old man forged signatures on the payment schedule of the Ministry of Environment as well as letters for award of contract to 8 companies by the Ministry with contract sum totaling N927 Million. • The defendant after forging the payment schedule, forwarded same to the bank for payment. He diverted to his own phone, all calls made by the bank to the mobile phone number of the Minsitry’s Director, Finance & Accounts for authorization of payment. When the calls came for authorization, the defendant replied as the DFA and directed the payment of the sum presented. • The Commission was swiftly informed by the Permanent Secretary and the accounts were freezed but not before over N700m was stolen. The Commission recovered the stolen sum by tracing the defendant’s banks and assets. The corresponding banks were indicted for not complying with money laundering laws and regulations on payment of suspicious funds. • The Defendant is presently facing criminal prosecution at the High Court of the FCT, Abuja.

45. Suggestions • Install current technologies in government business • Ensure budget integrity and discipline in the State’s MDAs • Openness and transparency in government expenditure and spending • Reduce bureaucracy and regulations to speed up government business • Pay civil servants reasonable sum as remuneration • Leadership at all levels to show good examples

46. Suggestions • Ekiti State must harness the Federal Government’s Budget Support Facility by meeting the requirements set for participating in the Facility as indicated in the Fiscal Responsibility Plan • It is a conditional loan programme to state governments introduced to enhance fiscal prudence, transparency, efficiency in public expenditure and payment of salaries. • The conditions include publishing the state’s financial disbursement and completing the State’s Biometric Data of staff list

47. Suggestions • Citizens must monitor and track projects in their constituencies • Assets declaration, monitoring and tracing • Eradicate inefficiency and wastage in the utilization of state resources • Periodically identify and examine loopholes and practices that promote government inefficiency, unreasonable costs of governance and waste of public funds • Constantly educate and inform civil servants of the vulnerabilities and how to check opportunities for corruption

48. Conclusion • Prevention remains the best weapon against corruption. The stronger and tighter the controls the more complex it is for indiscretion and fraud. • Public officers must support zealously the crusade against corruption in their words and deeds • Stealing of public funds and property however defined, is a crime and not excusable in any circumstance • The ICPC enjoins all to participate in the fight against corruption by reporting and exposing fraud, corruption related vices in our public offices

49. Thank You

50. References • Bhargava, V. (2005). The Cancer of Corruption. World Bank Global Issues Seminar Series. • Fishman, R; & Golden, M.A. (2017), Corruption: What Everyone Needs to Know Oxford University Press, New York • Rotberg, R. (2017). The Corruption Cure: How Citizens and Leaders can Combat Graft. Princeton University Press, New Jersey. • Rose-Ackerman, S., & Palifka, B. J. (2016). Corruption and Government: Cause, Consequences and Reform (2nd edtn), Cambridge University Press. • Soni, D & Karodiha, A. (2017). Corruption: A Crime Against Humanity. Businesslive. Available at https://www.businesslive.co.za/fm/features/2017-07-20-corruption-a-crime-against-humanity/ . Accessed 20 October 2018. • Woo, J & Choi, E. (2018). Political Corruption and Democratic Governance. Lexington Books, Lanham, Marylan.