Nigeria’s legislative business hits an abysmal low ebb on May 30, 2023 with the dramatic amendment of the Corrupt Practices and Other Related Offences Act, 2000 by the Senate, rendering the Independent Corrupt Practices and Other Related Offences Commission (ICPC) a weak anti-corruption institution through the orchestrated whittling down of the powers of the ICPC Chairman and the Commission.
A critical appraisal of the amendment by the Senate reveal that the core intention of the senators was to whittle down the powers of the ICPC Chairman, as glaring in the mutilation and amendment of Sections 3(5), 3(6), 3(7), 3(8), 3(9) and 3(10) of the Principal Act by substituting the word ‘members’ of the board with the word ‘commissioners’. The Red Chamber further amended Section 3 of the Principal Act by inserting a new subsection 3(11) creating offices for the Commissioners (board members) of the Commission such as Commissioner (Investigative Matters), Commissioner (Legal Matters), Commissioner (Prevention, Systems Review and Financial Intelligence), Commissioner (Asset Recovery and Management), Commissioner (Anti-Corruption Education and Mobilization), Commissioner, (Forensics and Emerging Technologies), Zonal Commissioner, North East, Zonal Commissioner, North Central, Zonal Commissioner, North West, Zonal Commissioner, South East, Zonal Commissioner, South South, and Zonal Commissioner, South West.
Not content with the above, the senators went for the jugular of the ICPC Chairman, stripping him of his powers as listed in Sections 4 and 7 of the Principal Act.
While Section 4(2) of the Principal Act states that the Chairman and any four board members of the Commission shall constitute a quorum for meetings which is presided over by the Chairman who is the accounting officer of the agency, the Senate amended the existing subsection (2) for a new subsection (2). The new subsection 2 states that the quorum for board meetings shall be “any five members of the board and the five members in attendance shall appoint a chairman to preside over the meeting. In a command and executive authority structure of law enforcement agencies, this is not only strange, but tantamount to giving authority to subvert the powers of the Chairman by removing locus of authority with attendant consequences.
The Senators also amended Section 7 of the Principal Act on the issuance of administrative orders by the Chairman of the Commission called “standing orders”. Section 7 (1) of the Principal Act states, “The Chairman may issue administrative orders to be called “standing orders”, which shall conform with the provisions of the general control, training, duties and responsibilities of officers of the commission and for such other matters as may be necessary or expedient for the good administration of the Commission and to ensure the efficient and effective functioning of the Commission. The legislators, however, amended Section 7(1) of the Principal Act by substituting the word ‘Chairman’ for the word ‘Commission’.
*On Attempt to make Board Members Operational Officers and Involved in day-to-day Running of the Commission*
The amended bill 2023 passed by the Senate re-names Board members as ‘Commissioners’. Referring to Board members as “Commissioners” is a deceitful attempt to bring Board members into mainstream operations. This will bring the Commission into operational disrepute and quagmire. It would render redundant, the management staff who are mostly professionals and specialists fully trained over the years with requisite expertise in their fields. The role of a Board for an agency is simply advisory and policy-making not to take over operational and administrative activities from the Chairman. It will be gravely detrimental to the Commission’s prospects and progress.
Instructively and importantly, the board cannot be involved in operations and management and same time oversee the Commission’s policies and advisories. This is clearly a conflict of interest. The Board will be beclouded and prejudiced when directly involved in operations and then sit to decide on the legitimacy or propriety of operations and managerial activities conducted. It flies directly against accountability and transparency. Boards are to sit periodically and make policy advisories and directives.
*Senate’s Amendment of the ICPC Act 2000 – Section on Quorum of Board*
Section 4(2) of the present law provides “That the Chairman and any four members of the commission shall constitute a quorum”, Subsection 2(a) of the amendment provides that: “The proceedings of the meeting of the Commission shall be as provided in the schedule to this Act”. The Senate’s amendment of subsection (2) provides that the quorum for meetings shall be ‘any five board members’ and the five in attendance shall appoint a Chairman to preside over the meetings.
This means fundamental and far-reaching decisions could be made by five persons on the board without the notice or knowledge of the Chairman. It means investigative or prosecutory decisions made by the Chairman may be overturned at any time by the Senate’s amendment quorum of five (without the Chairman). It portends a more serious foreboding – a meeting may be convened by an aggrieved “quorum” (in absence of the Chairman) to annul directives of the Chairman and decisions of the board. The same spurious “quorum” may suspend or remove the Chairman, board member or staff. This is a provision that has brought a lot of infighting in some boards of agencies. This amendment is an affront to the Constitution and the powers of the President to nominate a Chairman and board members for a government agency.
*Making the Chairman a Nominal or Ceremonial Head of the Commission*
Section 7(1) of the ICPC’s Principal Act provides that “The Chairman may issue administrative orders to be called ‘standing orders’, which shall conform with the provisions of the general control, training, duties and responsibilities of officers of the Commission, and for such other matters as may be necessary or expedient for the good administration of the Commission and to ensure the efficient and effective functioning of the Commission.” The Senate amendment altered “Chairman” for the word “Commission”.
The amendment directly renders the Chairman as a nominal or ceremonial head of the Commission. This surely will create tension, conflicts, distrust, infighting. It obviously will breach and impede the smooth management and operations of the Commission. An anti-corruption agency or law enforcement agency must have a leader, Chairman who on daily basis takes firm and affirmative decisions.
ICPC like all strong and successful anti-corruption agencies round the world, must have an Executive Chairman who is the Chief Investigator and Chief Prosecutor of the Commission. This is not subject to political considerations and interests. The Chairman must act directly and swiftly on issues such as arrest, account freezing, asset seizure and day-to-day activities demanding the head of the agency’s urgent action.
Also, the ICPC as a law enforcement and anti-corruption agency should not have a full-time or day-to-day board. Drafters of the principal law were quite aware of this and they distinctively indicated board members as advisory and policy-making. The Chairman is the executive head of the Commission. A day-to-day Board drains the funds of the Commission and makes the Board decisions contentious, delayed and frustrating.
The boards of Anti-Corruption Agencies (ACAs) are for policy making and to give advisory support not for day-to-day operational, administrative, managerial decisions or strategies. Like the EFCC, the Board is part-time, the Chairman is the Chief Executive Officer of the Commission. This is also the case of boards of the NDLEA, National Human Right Commission, Bureau of Public Procurement, Nigerian Financial Intelligence Unit etc. Government especially now, in its efforts at reducing cost of governance, must make ICPC Board members clearly part-time for policy and advisory roles. No anti-corruption agency exists or succeeds with a nomenclature that makes the Chairman redundant and permits board to take over the operations of the agency.
*Reduced Punishment and Sanctions*
As a confirmation that the Senate’s amendment was self-serving, the upper chamber through its amendment reduced punishment for a number of offences. An example of this is Section 22 (3) of the principal Act which punishes “any public officer who, in the course of his official duties, inflates 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 years and a fine of one million naira”. As public procurement abuse remains the greatest area of financial hemorrhage of the government, the 2000 Act was made to check this fraud. However, the fine of N1 million imposed by the present law was reduced by the Senate amendment to N500,000 without an option of imprisonment. This needs to be intensely revised and increase beyond the N1 million.
*Senate’s Amendment Made without Public Hearing (A Fundamental Error).*
Since 2003, attempts by the National Assembly to amend the ICPC Establishment Act have always been perceived with trepidations and apprehensive suspicion. Though amending a law is to advance its prospects and good governance not its debacle, the amendment by the Senate is certainly against advancement of its prospects and good governance. It’s not amending the law that is the apprehension of the practitioners and stakeholders but the dangerous and fatal implications on anticorruption efforts and programmes. It is of grave concern that the amendment was made without a public hearing (without stakeholders, ACAs, Law Enforcement Agencies, Civil Society Organisations and other practitioners) which is customary of such crucial sessions for amendments. Why the stealthy and underhand promulgation?
Amendment of Any Law must be Made to Advance the Interest of the People and Nation
Devious attempts were made in the past to proscribe and repeal the ICPC Act 2000. The most notorious and condemnable was the attempt in 2003 by then National Assembly who repealed the ICPC Act, 2000 by a scandalous legislation called the Corrupt Practices and other Related Offences Act 2003 (the 2003 Act). The backlash then was due to the Commission’s audacious attempt to investigate a petition against then leadership of that National Assembly. This was said to be in the interest of the nation. President Obasanjo declined assent to the Bill but the National Assembly disregarded this and passed the Bill into law dated 18 May 2003.
Sadly, in a sheer display of their rascality and viscousness against the existence of the Act and the Commission, the individuals behind the condemnable law (2003 Act) in section 56 of that law, stated that “Any appointment made under the Corrupt Practices and Other Related Offences Act 2000 terminates at the commencement of this Act.” That law clearly sacked then Board and staff. This was not in the interest of the nation as that parliament claimed. Amendment of any law must be made to advance the interest of the people and nation and not self-serving interests and aggrandizement of some opportunists in the parliament.
*Kudos to the House of Representatives*
The leadership of the House of Representatives and the House Committee on Anti-Corruption deserves to be praised for not giving concurrence to the amended bill of the Senate despite pressure from some senators and board members of the Commission who craved for unfettered access to take control at the agency.
Preventing and combating corruption through anti-corruption agencies (ACAs) involves multidisciplinary functions and expertise. ACAs as law enforcement agencies (LEAs) are established by legislations well-conceived appreciating the focus and specialized field the agency is setup to operate and function. These specialized agencies operate under certain sphere of autonomy and direction. One of such ACAs is the Independent Corrupt Practices and Other Related Offences Commission established by the Corrupt Practices and other Related Offences. Act, 2000 (herein referred to as the ICPC Act). The National Assembly, the Presidency and indeed all Nigerians must question and appraise the raison d’etre of the supposed amendment by the Senate, for the success and progress of the anti-corruption programme and not to erode or compromise the meaningful gains recorded in the campaign against graft and sleaze.
Therefore, the amendment by the Senate is condemnable as it is ultimately to weaken the ICPC from being an effective law enforcement agency in the critical task of investigation and prosecution of crime, recovery of stolen lor diverted public assets, and assessment of corruption risk in Ministries, Departments and Agencies.
The unsavoury amendment of the ICPC Act just after the inauguration of a new government would have resulted in an unintended perception by the public and create trust deficit. Amending any anti-corruption laws in Nigeria should not be treated with levity considering the international implications for the nation.
