Oftentimes, the mere mention of the word corruption, invokes conflicting emotional reactions from different people depending on the context. For some, corrupt people are, in the Tartarean hierarchy of extreme decadence and iniquity, second only to Beelzebub! For others, corruption is an injured word, that’s become an instrument of blackmail against perceived enemies, political opponents and traducers; used to instil fear and command slavish loyalty!

Yet another category of persons, view corruption as a virulent subversion of the rule of law, justice, equity and fair play; a subversion of the rights of ordinary people by powerful and super-connected elites; a subversion of due process and social order; which has no place in civilised society.

Consider this. On a blisteringly hot day in Lagos, Nigeria, a motorist, A, in a funky air-conditioned 4WD “Chelsea Tractor” is stopped for routine traffic checks by policeman, B. A’s papers are impeccable. However, it turns out that B’s been on the road for several hours in the oppressive heat, thirsty, starving and claims his salary has been delayed by over a week! A offers B, some money for food and water driven, exclusively, by humane considerations for B’s predicament.

By offering B some money to eat and drink water, has A necessarily engaged in corrupt practices? Assuming, without conceding, that A’s actually engaged in corrupt practices through his actions, will it be in the public interest to investigate and prosecute this alleged infraction, in a country where billions of dollars of taxpayers’ money has been stolen by public officials in the 63 years post-independence? How likely is culture to play a part on these particular facts?

Now, let’s assume similar facts and posers but this time, in UK, on a hot summer’s day with scorching temperatures exceeding 35 degrees centigrade, in picturesque Ely, Cambridgeshire? Purely on a balance of probabilities, it is more likely than not, that the Nigerian motorist, A, will not be prosecuted whereas, in the UK, he would. That’s not necessarily because of any inherent lacuna in the jurisprudence of both countries, but rather because the cultural and socio-economic dynamics in Nigeria and the UK are sharply different.

Afterall, it is very rare, actually, almost unheard of in contemporary times, for the salaries of Metropolitan Police officers, and those in other Constabularies therein, to be owed. The ideological and sociological rationale are simple. If Police Officers are not consistently and properly incentivised to perform overriding duties of crime detection and law enforcement, pray, how are they to muster the zeal to be tough on acts preparatory to crime, tough on crime and tough on criminals?

If they are not paid on time, how will they feed, pay their rents/mortgages and energy bills? The apposite adage here is: a hungry man, is an angry man. So, a hungry policeman, who is owed his salary cannot perform optimally. He’s an angry man: PHL 101!

Another example. Country X, a super power, uses its own peculiar interpretation of international law, for geostrategic reasons, as a pretext to invade country Z, a weaker mineral-rich sovereign state, to the disapprobation of the majority of the civilised world. However, X, gets its way through the sheer power of military might. Is that reasonable? Is that equitable? Is that just? Is that lawful? Is that infraction of international law, by X’s sheer military might, and X’s proxies, not an outrageously violent corruption and subversion of the global legal order?

Accordingly, therefore, the inference that corruption means different things, to different people, in different contexts, is not far-fetched. Nevertheless, a pragmatic denouement is accomplished via the intermediation of the law which offers statutory definitions of corruption in varying jurisdictions. Essentially, because corruption is a global challenge not a national challenge. Thus, domestic law and international law, are utilized to address or seek to address the challenge.

The 1999 Nigerian Constitution, the nation’s supreme law, stipulates at section 15 (5) that the State “shall abolish all corrupt practices and abuse of power”. According to section 3 of the country’s Corrupt Practices and Other Related offences Act 2000, corruption “includes bribery, fraud and related offences”. The parliamentary draftsman’s use of the word “includes” is, itself, evidence of drafting imprecision! Otherwise, it could have used a strict formulation along the following lines for example, “corruption means X”!

Even so, because parliamentary drafting, is predicated on the predominant political calculus, it is sometimes tactically geared towards opaqueness; to ensure that statutes are wide enough to capture intended targets and completely upend, and punish, conspiratorial and actual criminality; malfeasance, misdemeanours and mischief. Section 46 of the Economic and Financial Crimes Commission (Establishment) Act 2004, defines economic and financial crimes as “non-violent, criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organised manner, thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices…”. The Money Laundering (Prevention and Prohibition Act) 2022 also seeks to curb and punish corruption.

Notwithstanding that statutory definition, corruption encompasses illicit enrichment, that is, the significant increase in the assets of persons which bears no correlation to their income. It includes the proceeds of corruption, that is, corporeal and incorporeal assets, liquid or illiquid and any document or legal instrument evidencing title to or interests in such assets acquired as a result of an action of corruption. It includes, but it is not limited to, bribery, converting public assets for private use, conflicts of interests which confer pecuniary gains on its participants, cronyism, embezzlement, extortion, nepotism etc.

Economists often describe these illegalities as “rent seeking activities” because they generate “rents” for the perpetrators at the expense of the general public. Nigeria is a state party to the 2003 African Union Convention on Preventing and Combating Corruption and the United Nations Convention Against Corruption (UNCAC) of 2005. Likewise, the United Nations Global Programme Against Corruption characterises it as “the abuse of power for private gain” irrespective of whether or not it emanates from the public or private sectors.

The United Kingdom’s Bribery Act 2010, establishes that a person is guilty of an offence where he offers, promises or gives a financial or other advantage to another person, and intends that advantage to: induce a person to perform improperly a relevant function or activity; or, to: reward a person for the improper performance of such a function or activity.

The mens rea element is established in section 1 (3) therein where that person “knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity” Section 12 thereof establishes, inter alia, instances where the statute exercises extra-territorial force. That is, it criminalises acts which would otherwise be punishable in the United Kingdom if committed elsewhere. That statute borrows a leaf from the United States’ Foreign Corrupt Practices Act (FCPA)1977 “as amended”.

The FCPA criminalises bribes and other corruptive practices against United States citizens and entities who utilise such illegalities to further their business interests and has extra-territorial force. It encompasses publicly quoted companies, the directors, the visible and “invisible” directing hearts and minds of the companies, the shareholders, employees and agents. Plus, it implicates foreign entities, persons and third parties, who directly or indirectly facilitate or execute corrupt payments in the United States, widely defined.

A few examples make the point. In the mid-90s, two British parliamentarians, Neil Hamilton and Tim Smith, were embroiled in an alleged “cash-for-questions” corruption scandal, driven by then Harrods owner, the Egyptian businessman, Mohammed al-Fayed. The scandal cost both men their Commons’ seats and prompted then Prime Minister, John Major, to establish the Nolan Committee on Standards in Public Life.

Volkswagen, the German car-manufacturer was stung in a major corruption scandal in 2015. Basically, the company intended to falsify its environmentally-friendly credentials by installing a “defeat device” which generated incorrect results when its auto engines were tested. By June 2020, the company had paid over $30 billion in related penalties!

Through 2018 and 2019, there were several crashes involving Boeing’s 737 Max-aircrafts. The underlying problem was a defective directional mechanism which had the potential of misdirecting the plane. Forensic examinations by Congress established substandard safety oversight by the Federal Aviation Authority and, a conflict of interest, that is, a corruption of the integrity of its statutory oversight functions; over-relying on Boeing’s employees, which it (FAA) should be undertaken.

According to a June 2019 study, undertaken by the University of London’s School of African and Oriental Studies, The Politics and Effectiveness of Nigeria’s Economic and Financial Crimes Commission, only 3.75 per cent of cases investigated were filed in court, where 23 per cent resulted in convictions. The EFCC achieved higher filing and conviction rates on low- or mid-level crimes than higher level corruption. Plus, a February 2022 Council of Foreign Relations (CFR) report, quoting the Nigerian Extractive Industries Transparency Initiative (NEITI), estimated that the nation loses over $17 billion to illicit outflows annually; whilst illicit outflows for the continent are approximately $50 billion. In short, Nigeria accounts for a third of corrupt outflows in the continent going by the CFR’s report.

Self-evidently, strategic corruption, is an illegality, albeit of a different order of magnitude, scale and complexity. Because it is often systematic, and may involve very large capital inflows and outflows; traversing jurisdictions, land expropriations, forced expulsions, politically powerful persons, big firms and governments etc.  Some analysts argue that powerful nations pontificate greatly about strategic corruption, yet, they themselves, are neck deck in it on the global stage.

Of course, all forms of corruption are abhorrent and ought to be punished. The burning question within a political context is: who punishes strategic corruption when superpowers’ strategic interests collide directly or via proxies, militarily, and this results in the loss of human lives, enforced displacements, mass migration and diminution of sovereignty and territory say? How and to what extent might strategic corruption, and hypocrisy at the highest levels, widely defined, underpin some of the seemingly intractable political quagmires the world faces today in the Russian/ Ukrainian debacle, the Israeli /Palestinian crisis say?

If the United Nations Security Council is, for instance, unable or unwilling, to agree resolutions condemning blatant crimes against humanity by key dramatis personae in belligerent states, for geostrategic reasons by veto wielding permanent members, what hope is there for consistently safeguarding international law?

Still, more objective-metrics are needed to evaluate strategic corruption and the entire assessment methodology must be scrupulously ethical and transparent: unbeholden to any interest. The rationale is sharp. Corruption, however defined, is never a victimless-crime.

The adverse impacts are humongous especially across the developing world. They include out-of-school children, poorly funded educational systems, archaic and almost non-existent healthcare infrastructure and weak institutions. The socio-economic multiplier effects are limitless: unemployment, high crime rates, drug abuse, terrorism, people trafficking, mass migrations across the Mediterranean Sea and Pacific oceans which has turned those High Seas into “blue tombs”!!

A world of great minds, scientific innovations, courageous leadership, must summon the political-will to outperform the status quo. Mahatma Gandhi (1869-1948) got it! “Corruption and hypocrisy ought not to be the inevitable byproducts of democracy…”
Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria.