UNIMAID JOURNAL OF PRIVATE AND PROPERTY LAW Vol. 5, No.1, 2020 ISSN: 2534-6181 Unimaid Journal of Private and Property Law Vol. 5 No. 1 CORRUPTION OFFENCES AND PENALTIES IN NIGERIA: A CRITICAL AND COMPARATIVE ANALYSIS OF TIM CRIMINAL AND PENAL CODES PROVISIONS By Oladimeji I. Idowu* Abstract This study presents a critical evaluation of the anti-corruption law in Nigeria; turning specifically to a comparative discussion of the Criminal and Penal Codes provisions on corruption offences. In Nigeria, the law reports are replete with numerous cases where corruption offences litigations are lost due to confusion occasioned by wrong interpretations given to certain provisions on corruption offences. This study, therefore, analyses corruption offences in Nigeria, with a view to drawing useful in sights in order to provide better guidance to the courts, lawyers and laymen in understanding the distinguishing features of some of the corruption offences. The study adopted the doctrinal methodology, and thus focused on the lex lata (the law as it exists) of the offences of corruption as opposed to the lex ferenda (what the law should be) and identifies bribery and fraud as major among corruption offences created under the two codes. The legal elements of the offences discussed are clearly spelt out. The study found certain provisions to be obsolete, ambiguous, and non-responsive to advancement in the society and new trends of corrupt practices. Drawing from the analyses provided, the study arrived at a set of recommendations, including that the two codes should be imbued with legal mechanism capable of preventing commission of corruption offences and provisions for restitution and forfeiture. Keywords: Corruption, Bribery, Fraud, Criminal Code, Penal Code 1. Introduction Corruption is a global menace, and the cost is enormous.tRight from the era of the Late Prime Minister Tafawa Balewa in the 1960s to the present day administration of President Muhammadu Buhari, Nigeria has perennially battled corruption.2Corruption *Lecturer in Law, Redeemer's University, Ede, Osun-State, Nigeria 'Samuel Kimeu, 'Corruption as a Challenge to Global Ethics: The Role of Transparency International' (2004) Journal of Global Ethics vol.10, lss.2 accessed 5 May 2020, 9:33am; Vito Tanzi 'Corruption Arround the World: Causes, Consequences, Scopc, and Cures.' (1998) IMF Working Paperacessed 5 May 2020, 9:42am. 2 Lara Adejoro, 'Over 95m Nigerians live in extreme poverty' Punch News Paper (Friday, July 10, 2020) accessed 20 July 2020, 20 Corruption offences and penalties in Nigeria: A critical and comparative Oladimeji t. Mown a analysis of the criminal and penal codes provisions has continued to fester as the most pivotal clog in Nigeria's drive towards sustainable development.3 It has been estimated that between 1960 and 1999 close to US $400 billion was misappropriated by Nigeria public officials and their cohorts4. As a result, several anti-corruption laws were enacted to combat corruption offences in Nigeria5.Among these anti-corruption laws, the Criminal Code Act 2004 and Penal Code Act 1990 are general in nature and are the primary focus of this research. This study, therefore, analyses corruption offences embodied under the Criminal and Penal Codes with a view to drawing useful in sights for purposes of providing better guidance to the courts, lawyers and laymen in understanding the distinguishing features of the various corruption offences, particularly, corruption offences of bribery and fraud. Appropriate references were also made to some of the contemporary anti-corruption legislation such as the Corrupt Practices and Other Related Offences Act 2000, the Economic and Financial Crimes Commission Act 2004, Advance Fee Fraud Act 2006, etc. because there are provisions in these Acts which to a large extent, address some of the inadequacies of the Criminal Code Act 2004 and Penal Code Act 1990. The first part of the paper is the introduction. The second part examines the definition of corruption in a legal context. The third part examines the classification of corruption. The fourth part undertakes a comparative analysis of the Criminal and Penal Codes Provisions on corruption offences and penalties, focusing specifically on bribery and fraud. The fifth Part presents the conclusion and recommendations. Definition of Corruption from the Legal Perspective Corruption has been described, severally as a complex and multifaceted global phenomenon.6Even though scholars have advanced numerous definitions, yet, there remains significant confusion about the meaning of "corruption".7 Regrdttably, despite the existence of numerous anti-corruption laws in Nigeria, no single one of them 12:10pm. 3 A. 1. Adeniran, 'Qualitative Study on Patterns, Experiences and Manifestations of Corruption in Nigeria' (2019 accessed 5 May 2020, 10:38am. `United Nations Office on Drugs and Crime accessed 5 May 2020, 1:06pm. 5These include: Criminal Code Act 2004, Penal Code Act 1990, Independent Corrupt Practices & Other Related Offences Act 2000, Economic and Financial Crimes Commission Establishment Act 2004, Advance Fee Fraud and Other Related Offences Act 2006, Money Laundering (Prohibition) (Amendment) Act 2012 etc. 6 Countering the Global Problem of Corruption ; Corruption Impedes Development accessed 8 May 2020, 3:06pm. 'Jonathan Rose, 'The Meaning of Comiption: Testing the Coherence and Adequacy of Corruption Definitions' (2018)Nov 2017 Public Integrity vol.20, Iss.3 p 220-2.33 29 ; Xizi Liu, 'A Literature Review on the Definition of Corruption and Factors Affecting the Risk of Corruption' Open Journal of Social Sciences, 4, 171-177, June 2016 accessed 8 May 2020, 4:23pm. 21 Unimaid Journal of Private and Property Law Vol. 5 No. I attempted a definition of the concept. The closest offering is a general description given by the Corrupt Practices and Other Related Offences Act (The ICPC Act)8, which states in the interpretation part that 'Corruption includes bribery, fraud, and other related offences'. This however, should not be surprising because apart from the said Act which deals with a wide range of corrupt practices, virtually all other legislation deal with a specific and specialized aspect of corrupt practices. As a result, instead of giving a general definition of the term "corruption", these statutes only define the particular specie of corrupt practice they each deals with. The Criminal Code Act 2004 and Penal Code Act 1990, for example deal with corruption by Public Officials, and therefore describe the offence of "official corruption. " However, the interpretation offered by the ICPC Act expands the frontiers of corruption beyond an offence related only to public officials by stating that corruption includes, 'bribery, fraud and other related offences'. However, this interpretation still leaves room for confusion with regard to the exact meaning of "other related offences". At this juncture, it is profitable to note that institutions such as the World Bank have defined corruption as 'abuse of public office for private gain.'9It is submitted that corruption is not limited to office holders alone, ordinary individuals are also involved. Also, abuse of office does not need to result in private gain to amount to corruption. For instance, acts of nepotism does not necessarily have to result in any private gain, such as money of property. Furthermore, the Inter-Governmental Action Group against Money Laundering in West African (GIABA) defines corruption as `...the abuse and/or misuse of public or private-corporate office for private gain, monetary or otherwise.' I°The main issue with this definition is that it limits corruption to "office" holders and also such abuse of office must result in "private gain". It is clear from the foregoing that the definitions offered by the Word Bank and Inter-Governmental Action Group against Money Laundering in West African are not particularly useful for legal purposes. However, they have a role in the broader anti-corruption discourse. To this end, this study, relying on insights distilled from the various relevant provisions of Criminal and Penal Codes", the contemporary anti-corruption legislation and decided cases, defines corruption, simply, as the misuse of entrusted power or dishonest use of one's privilege, office or position for personal gain or no gain at all. Classification of the Main Anti-Corruption Law in Nigeria The anti-corruption law in Nigeria has been divided into two broad categories: (i) General and Conventional Anti-Corruption Law; and (ii) Specific and Contemporary tCap. C31 LF1420b4. 9 Augusto Lopez Claros, 'Removing Impediments to Sustainable Economic Development: The Case of Corruption'(2013) The World Bank Financial and Private Sector DevelopmentPolicy Research Working Paper 6704accessed 8 May 2020, 5:30pm. GIABA Report, "Corruption - Money Laundering Nexus: An Analysis of Risks and Control Measures in West Africa" accessed 8 May 2020, 6:13pm. " LEN 2010, Cap C38. 22 Corruption offences and penalties in Nigeria: A critical and comparative Oladimeji Idowu analysis of the criminal and penal codes provisions Anti-Corruption Law.}2The general and conventional anti-corruption law consist of two legislations, namely: (i) Criminal Code Act 2004, and (ii) the Penal Code Act 1990.The specific and contemporary anti-corruption law consist of specialized Acts enacted to address specific corrupt practices." These include: i. Independent Corrupt Practices & Other Related Offences Act 2000. ii. Economic and Financial Crimes Commission Establishment Act 2004. iii. Advance Fee Fraud and Other Related Offences Act 2006. iv. Money Laundering (Prohibition) (Amendment) Act 2012. v. Miscellaneous Offences Act 1983. vi. Code of Conduct Act 2004. vii. Nigerian Extractive Industries Transparency Initiative Act 2007. viii. Freedom of Information Act 2011. ix. Fiscal Responsibilities Act 2010. x. Penal Code Laws of Federation of Nigeria 2004. xi. Criminal Code Law of Federation of Nigeria 2004. xii. Banks and Other Financial Institutions (Amendment) Act 1991. Failed Banks (Recovery of Debts) and Financial Malpractices in Banks (Amendment) Act 1994. Development of Anti-Corruption Law in Nigeria When Nigeria gained independence in 1960, the Criminal Code' and the Penal Code" were the two principal legislation that criminalise the offence of c,orruption."Certain provisions bothering on corruption in these codes were found to be deficient, and in 1966 efforts were made to improve on the said provisions.° The then military administration in Nigeria introduced the Criminal Justice (Miscellaneous Provisions) Decree". The Decree repealed sections 98, 100, 114, 115, and 116 of the Criminal Code, which deal with official and Judicial Corruption and replaced same with new provisions i.c., sections 98, 98A, 98B, 98C, and 98D. These new provisions, among other things, abolished the distinctions between corruption touching, the administration of justice° and corruption not touching the administration of justice, 2°and widen the 12 Chukkol, KS. (2001) Enforcement Institutions: Powers, Procedure and Penalties under Various Anti- Corn►ption Laws in Nigeria. In Ladan, M.T. (ed.) law, Human Rights and the Administration of Justice in Nigeria. A.B.U. Press, Zaria p329 '1 (bid 14 Which came into force on June, 1,1916 and is now CAP C38 LFN 2004. 15 Which was brought into operation on September 30, 1960 vide the Penal Code Law 1959 (Commencement) Notice, 1960, Northern Region Legal Notice No. 96 of 1960'. n Morris, H. F. "How Nigeria Got Its Criminal Code." Journal of African Law, vol. 14, no. 3, 1970, pp. 137- 154. JSTOR, www.jstor.org/stable/744581. "From 1916, for a period of over 40 years there was one Criminal Code in the whole of Nigeria fundamentally based on the Queensland (Australia) Criminal Code. The Penal Code was enacted in 1959 but replaced the Criminal Code on September30, 1960. The Penal Code was based on the Code of Sudan, enacted in 1899, which in turn was based on the Indian Penal Code drafted by Lord Macaulay between 1833 and 1837, and brought into force in 1860". 170konkwo, C.O. (2002) Op. cii, p. 271 n Criminal Justice (Miscellaneous Provisions) Decree No.84, 1996 19 The repealed section 98 20 The repealed sections 114 and 116 23 Unimaid Journal of Private and Property Law Vol. 5 No. scope of the public officer's actions that can amount to corrupt practice beyond the duties of his office to include acts done in relation to any matter affecting the affairs of the establishment where he serves as a public officer. However, despite the steps to address the shortcomings in the Criminal Code, the new provisions also suffer some defects21 in that they do not address corruption in the private sector," and that they did not adequately widen the scope of the offence.' Also, both the Criminal Code and the Penal Code did not establish any institutional framework to champion the fight against corruption. The upsurge and prevalence of the crime of "advance fee fraud," however, made the Government of Nigeria enact several anti-corruption laws to complement the extant Criminal and Penal Codes. Among the contemporary anti-corruption laws, the Independent and Corrupt Practices Act24 and the Economic and Financial Commission Establishment Act25 are outstanding. Essentially, the ICPC Act26 was created mainly to fight corruption while the EFCC ACT" was established to wage war against financial and economic crimes. As seen clearly from the foregoing, the Criminal and the Penal Codes constitute the entire first divide of the anti-corruption regime in Nigeria. In contrast, all other enactments are contemporary and come under the second division of the categorisation. On this wise, the focus of this study lie, specifically, on the first categorisation, i.e. the general and conventional anti-corruption laws, which consist of the Criminal and Penal Codes. This notwithstanding, relevant Provisions of the specific and contemporary anti-corruption laws which are complementary to the provisions of the Criminal and Penal Codes on corruption offences will be discussed. 1. Comparative Analysis of the Criminal and Penal Codes Provisions on Corruption Offences and Penalties As stated earlier in this study, both the Criminal and Penal Codesdo not define or classify corruption offences. However, section 2 of the Corrupt Practices and Other Related Offences Act, 200025 interpret corruption to include "bribery, fraud and other 21 [bid, no 17 22 (bid 75 Ibid 24 Cap. C31 LFN 2004 a No. 50 of 2004 'The ICPC is empowered to receive, investigate and present any report of corruption against any person. It is also empowered (amongst others) to examine the practices, systems and procedures of ptiblic bodies and direct or supervise a review where it thinks that such practices, systems or procedure aid or facilitate corruption. Officers of the body also enjoy the immunities of police officers when investigating or prosecuting cases of corruption. 27The EFCC was established by the EFCC (Establishment) Act 2002 for the investigation and prosecution of all financial Crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit fraud, contract scam etc. The commission is also charged with the enforcement of the following legislations-the Money Laundering Act 1995 Cap. MI 8 LFN 2004, the Advance Fee Fraud Act 1995, the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994 (as amended) the Banks and Other Financial Institutions Act 1991 (as amended), the Miscellaneous Offences Act and other laws relating to economic and financial crimes. 28 The Corrupt Practices and Other Related Offences Act 2000 was the first executive bill, "Anti-Corruption Bill", presented to the National Assembly in June 1999 on assumption of Chief Olusegun Obasanjo's 24 Corruption offences and penalties In Nigeria: A critical and comparative Oladitneji 1. Idohat analysis of the criminal and penal codes provisions related offences". The study, therefore, adopts classification of corruption offences under the ICPC Act and will provides a comparative analysis of the Criminal and Penal Codes provisions on corruption offences and penalties along the subject headings of bribery and fraud. (i) Bribery Sections 98, 98A, and 98B of the Criminal Code29prohibit bribery involving public officials.39 The Penal Code31 does not provide for the offence of bribery; it however, prohibits the offence of gratification in sections 115,116 and 118, which have similar elements to the Criminal Code offence of bribery. For instance the Penal Code criminalises: public officers taking gratification in respect of official act,32 taking gratification in order to influence public officer,33 and offering or giving gratification to public officer.34In addition, the Corrupt Practices and Other Related Offences Act 200035 in section 18 prohibits the offence of bribery. From the Criminal Code end, section 98 and section 98B both deal with soliciting and receiving of bribe. Section 98(1) (a-b) states: "Any public official (as defined in section 98D) who- (a) corruptly asks for, receives or obtains any property or benefit of any kind for himself or any other person; or (b)` corruptly agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person, on account of ..."36.This section clearly creates three situations that can crystalise into the offence of bribery. The first is a situation where the public officer corruptly asks for bribe. The second situation will crystalise where a public officer corruptly receives or obtain a bribe. The third situation will occur where a public officer agrees or attempt to receive a bribe. 37 administration. The bill was later passed by the National Assembly and assented to by the President as the Corrupt Practices and Other Related Offences Act 2000, coining into effect on 13" June, 2000. The Act set up the Independent Corrupt Practices and Other Related Offences Commission which was inaugw-ated on 29" September 2000. zy LFN 2010, Cap C38. Note that section 494 also prohibits corrupt acceptance of gifts by agents. 31 Penal Code, Cap 89, Laws of Northern Nigeria, VoL1L1, 1963. 32. Penal Code, section 115 33 1bid, section 116 341bid, section 118 35 Corrupt Practices and Other Related Offences Act, Cap C31, LFN, 2004. 36 Section 98(1Xa-b) Criminal Code "(i) anything already done or omitted, or any favour or disfavour already shown to any person, by himself in the discharge of his official duties or in relation to any matter connected with the functions, affairs or business of a government department, public body or other organisation or institution in which he is serving as a public official; or(ii) anything to be afterwards done or omitted, or any favour; or disfavour to be afterwards shown to any person, by himself in the discharge of his official duties or in relation to any such matter as aforesaid, is guilty of the felony of official corruption and is liable to imprisonment for seven years" 'A careful examination of section 98B reveals that the section criminalizes bribery offences by anypeison who asks for, received, or agrees or attempts to receive bribe in respect of actions or inaction of any public official. Thus, whilethe provisions of sections 98 and 98B deal essentially with receiving of bribe, section 98A of the Act deals with offer of bribe. Here, the law targets persons, particularly, persons other than public officers, who compromise public officials in the conduct of their official duties; Note that these provisions affect any public officer who compromise other public officials in the conduct of their official duties 25 Unanairl Journal of Private and Property Law Vol. 5 No. 1 a. Ingredients of Bribery The ingredients which the prosecution must prove in order to secure a conviction in any of the scenario created are as follows: (a) that the accused person is at the material time in the public service; (b) that there was a duty to be performed by the accused person; and (c) that the accused person corruptly asked, received, or obtained, or agreed or attempted to receive or obtain, any property or benefit of any kind for himself or any other person.38 In proving the foregoing ingredients, it is significant to note that in Eze v The State,39the Court of Appeal held that, "To establish criminal responsibility, there must be mens - rea - criminal knowledge or intention to commit the offence, to support the actus reus - the actual act.40" In addition, it is required of a Prosecutor to prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind.41 A critical component of the mens rea of bribery is that the "asking for or receiving a benefit" or "giving or promising a benefit" was done "corruptly."42 Thus, the offer or receiving of a bribe under the Criminal Code must be with a corrupt intention. The Criminal Code does not define the word "corruptly", therefore, in order to determine the state of the mind of the accused person as of the time of giving or receiving of bribe, the circumstances surrounding the asking and receiving of the bribe must be considered. In Biobaku v Police,43 it is deducible that the giving or receiving of Bamgbose and S. Akinbiyi, Criminal Law in Nigeria (2015) Evans Brothers (Nigeria Publishers) Ltd, lbadan p. 292; Rex- v Eka [1945j 1 WACA 39;Akeem Olajide Bello, 'Mental Element of Bribery under Nigerian and Us (Federal) Anti-Bribery Laws: an Overview' Acta Universitatis Danubius. Juridica, Vol 10, No 2 (2014) "In proving the case of bribery, it is important to understand that, "there is a supply side, as well as a demand side of the offence of bribery." Why section 98 covers the demand side of the offence of bribery involving a public official section 98A covers the supply side which prohibits offering of a bribe to a public official by any person. Section 98B covers any person soliciting or demanding a bribe on account of any action of public officers." 39 (2017) LPELR-42006(CA); Aminu Tanko v The State (2009) 4 NWLR (pt.1131) 430; Okewii v FRN (2012) LPELR 7834 (SC). "The Court of Appeal stated further regarding the position of law as regards actus reus and mens rea that, "At the trial before the lower Court, the respondent did not prove one of the core features of the offence with which the appellant herein was charged. It is axiomatic, that it takes two to make a pair. Thus, no matter how daunting or graphic the actus reus, the absence of mens rea will still render comatose and paint a blurred indiscernible picture of the sequences of events, in the case which would then be riddled with doubts. The law is trite, that such doubts, should be resolved in favour of the accused person. Let me reiterate, that intent must be latent to warrant criminal culpability. Indeed, there must be an evolution of intention and action." " Also, the Supreme Court stated in Abeke v State(2007) 9 NWLR (Pt 1040) 411 S.C. that, Wens rea means a guilty mind and actus revs means a guilty act Put in another language, the guilty mind instigates the guilty act or flows into the guilty act.' 41 Ibid. " Criminal Code, section 98(1)(a-b) " (1951) 20 NLR 30 "The Court held that: "The notion behind section 98 is this in my view: an officer in the public service is expected to carry out his duties honestly and impartially, and this he cannot do if he is affected by considerations of benefit for himself or another person; and the mischief aimed at in s. 98 is the receiving or the offering of some benefits as a reward or inducement to sway or deflect the officer from the honest and impartial discharge of his duties- in other words as a bribe for corruption or its price."; According to Olajide Bello, "Bairamian J's effort has been described as more descriptive than definitive or conceptual," and the legal definition of bribery as "archaic and pedestrian." (Owasanoye, 2001, pp. 591 and 592). The 26 Corruption offences and penalties in Nigeria: A critical and comparative Oladhnejl I. Mown analysis of the criminal and penal codes provisions the benefit, reward or inducement must have been done with intent to sway the person taking the bribe from a dispassionate performance of his duty. With regard to the aspect of the physical element of bribery, the Supreme Court in Idagu v State" held that, "The act itself is the physical element".45 Thus, the three situations created under section 98 of the Criminal Code constitute the physical element, i.e., (i) the accused corruptly asked for a bribe, (ii) the accused corruptly received or obtained a bribe, and (iii) the accused agreed to receive a bribe. Note that in the first situation, it was the public officer who asked for a bribe. In the second, it was.another person who gave the public officer the bribe, and in the third situation, it is also another person asked for a bribe on behalf of himself or any other person for something done or omitted to be done by the public official. The foregoing was further expatiated upon by Olajide Bello when he said,44 'the actus reus of the demand side of bribery is constituted when a public officer "asks for, receives or obtains any property or benefit of any kind for himself or any other person;"47 or "agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person_"45 The actus reus of the supply side of bribery is constituted when any person "gives, confers or procures any property or benefit of any kind to, or for a public official...or to, on or for another person;" or promises or offers to give or confer or to procure or attempt to procure any property or benefit of any kind to, on or for a public official or to, on or for any person."50In any of these scenarios, once the requirement of "corruptly" is met, the act is deemed complete, and it is immaterial that the accused did not perform his own side of the bargain51, or that the accused never intended to do, make or show the favour,52 or the bribe was never given or that the public officer having asked for the gratification later changed his mind and proceeded to perform his duty.53 For instance, in Sogbami v C.O.P,54 the Court held that it is unnecessary to prove that the accused person in fact carried out his promise, provided his demand for bribe was corrupt. This means that a mere request or a mere promise to give a bribe, even without receipt is all that is needed to create criminal liability of the offence of provisions of the Criminal Code have also been described as "far from clear," (Okonkwo, 1992, p. 355) complex and "difficult for both prosecutors and judges alike to interpret and apply." (Akitiseye-George, 2000, p. 47). "(2018) LPELR-44343(SC). 45 Per AUG1E, J.S.C. (Pp. 18-19, Pates. A-A). 4Alceem Olajide Bello, 'Mental Element of Bribery under Nigerian and Us (Federal) fun i-Bribery Laws: an Overview' Acta Univasitatis Danubius. Juridica, Vol 10, No 2 (2014) accessed 16 June 2020, 11:14am. 47 Criminal Code, s. 98(1Xa). 43 [bid, s 98(1)(b). 49 Ibid, s 98A( I Xa). 93 Ibid s 98A(2) (b). 3' !bid, s98(3Xa). 52 [bid, s 98(30) Criminal Code. $3 Nweke v R (1995) 15 W.A.C.A. 29. 36 (1948) 12 W.A.C.A. 356. 27 Unimaid Journal of Private and Property Law Vol. 5 No. 1 bribery.55 It is very significant to note that the ICPC Act in its sections 8 and 9 have made some changes to the provisions of section 98 and 98A of the Criminal Code and section 115 of the Penal Code by replacing the phrase "Any public official or a public servant57" with the phrase "Any person." Thus, private persons are covered by most of the offences because the provision generally begins with 'any person who...' Also, there is provision for forfeiture of gratification received by a public officer and payment of a fine of not less than five times the sum or value of the gratification received.58 b. The Distinction between Bribery and Gratification As much as the offence of bribery and gratification are one and the same, it is important to note that the Penal Code does not draw any distinction between bribery which is designed to influence official conduct and gratuity which is merely a reward for performing official action prohibited under section 99 of the Criminal Code. The liability of the public officer who is involved in the offence of gratification prohibited under section 115(a) of the Penal Code attaches once there is proof that gratification is the motive or reward for doing or forbearing to do any official act. Also, it is noteworthy that although the word "corrupt" is used in section 116, an alternative phrase "illegal means" is provided as substitute. The word "illegal means" used as an alternative to "corrupt" could suggest that the word is meant to mean "improperly." Besides, the word "corrupt" does not play a cardinal role in construing the mental element of the provisions, unlike the position under the Criminal Code.59 55Criminal Code, section 98; B. S. Ardzar. 'The Legal and Institutional Measures in Combating Corruption in Nigeria: Issues, Challenges and Prospects' (2017)accessed 16 June 2020, 11:30am. "Criminal Code, s 98. 57Penal Code, s115. ss The Criminal Law of Lagos State (Law No_ 11 of 2011 hereafter "Lagos Law") improved on the provisions of the Criminal Code on bribery by deleting the word "corruptly" from the definition of bribery.55 The Lagos Law however does not contain any provisions clearly specifying the mews rea in the offence of bribery. While the deletion of the word 'corruptly' is commendable, the Lagos Law does not go far enough because it still leaves undefined the mental element in the offence of bribery. The definition of the offence in section 63 of the Lagos Law is still substantially similar to section 98 of the Criminal Code. "Note that there is a distinction between bribery and extortion, as section 99 of the Criminal Code draws a distinction between bribery and extortion. Whereas, neither the Penal Code nor the ICPC Act make such provision. Section 99 provides that: "Any person who, being employed in the public service, takes or accepts from any person, for the performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any promise of such reward, is guilty of a felony and is liable to imprisonment for three years." Section 99 of the Criminal Code ought to have been named "illegal gratuity" and not "extortion". The section creates an offence for receiving any reward for performance of official duty not necessarily for any corrupt act. For instance, in R v fjeoma. (1960) WRNLR 130,the defendant was charged under sections 98(1) and 99 of the Criminal Code. The evidence established that the defendant, an Acting Assistant Superintendent of Police demanded and received some money from the complainant before releasing the police extract report of an accident in which the complainant's motor vehicle was involved. It was established that it was the duty of the defendant as a Superior Police Officer to approve the release of the report. The court held that since the defendant received the money for the purpose of carrying out his duty and not for the purpose of any corrupt or improper act in the actual discharge of his duty, he could only be guilty under section 99 and not under section 98. According to Olajide Bello, the offence created under section 99 of the Criminal Code is similar to the offence of illegal gratuity under US Federal anti-bribery law. 28 Corntption offences and penalties In Nigeria: A critical and comparative Oladimeji 1. Mown analysis of the criminal and penal codes provisions a Punishment for Bribery Under section 98, 98A, and 98B, bribery is classified as s felony and attracts penalties of seven years imprisonment. Under section 99 of the Criminal Code, extortion by public officers attracts three years imprisonments. Also, abuse of office which is prohibited under section 104 of the Criminal Code and is punished under the same section with imprisonment of two years. Under the Penal Code, the offence of gratification is punished with imprisonment for a term which may extend to seven years or with fine or with both, and in some specific situations, the term of imprisonment is three years" and may extend to 14 years in some other situations61. Under section 19 of the ICPC Act, the punishment for bribery is imprisonment for five (5) years without an option of fine. (ii) Fraud Under the ICPC Act, fraud62 is listed as a criminal offence. Under the Criminal Code, the offence of fraud is treated both as "obtaining by false pretence" as well as "cheating" while the Penal Code treats fraud as "cheating." The Criminal Code in section 419 criminalises the offence of obtaining by false pretences and prohibits cheating in section 421. The same scenario is replicated in sections320-325 of the Penal Code, which proscribed the offence of cheating. However, the Advance Fee Fraud and Other Fraud Related Offences Act63in prohibiting the offence of obtaining by false pretences makes wider provisions than are contained in the Criminal and Penal Codes and imposes stiffer punishment.64 The difference in the nomenclature and the difference in some aspects of the ingredients notwithstanding, the offence of obtaining by false pretences and cheating are largely one and the same. Thus, in Amachree v Nigerian Army65, the Court held, 'There can be no doubt from examining the provisions of section 113(1) above, that the gist of the offence of cheating has all the hallmarks of the offence of obtaining by false pretences.'66Obtaining by false pretenses67 is, more often " Penal Code, section 116, 117, 118, 61 Ibid, section 115 (c) ii If such public servant is public servant in the service of the State or of the Government of the Federation acting in a judicial capacity or carrying out the duties of a police officer. 6` The ICPC Act interpreted the term 'corruption" to include 'bribery, fraud and other related offences'. The reason for the specific mentioning of the offence of "fraud" in this interpretation of corruption is not far from the fact that fraud offences are at the center of corrupt practices in Nigeria. More often than not, fraud is the enabler of varieties of other corrupt practices in the country. It is instructive to note that as a criminal offence, fraud takes many different forms. There is the general form of fraud (e.g., obtaining by false pretense) cheating) and some specific to particular categories of victims or misconduct (e.g., bank fraud, insurance fraud, forgery). 6No. 14 of 2006. "Section 1 criminalises the offence ofobtaining by false pretences_ It should be noted that the provisions of the Advance Fee Fraud Act are intended to have an overriding effect over those of the Criminal and Penal Code going by the provision of section 1 which opens with, 'Notwithstanding anything contained in any other enactment or law any person ...' (2002)LCN/1261(CA). " Per Chukwuma-Eneh, J.C.A. (Pp. 19-20, Pares E-D). The Black's Law Dictionary at page 678 defines false pretences as: "The crime of knowingly obtaining title to another's personal property by misrepresenting a fact with the intent to defraud". 29 Llnimaid Journal of Private and Property Law Vol. 5 No. I than not, a syndicated offence, and as Lord bolts said in Reg v Jones,68obtaining by false pretence is to make a fool of another person. It can be very daring and highly sophisticated. It is otherwise known as 'Advance Fee Fraud' or "419."69It should be noted that the term '419' is coined from section 419 of the Criminal Code dealing with fraud. a. Ingredients of Fraud In Kole Bello v Federal Republic of Nigeria70the Court of Appeal highlighted the ingredients to establish in a charge of obtaining money or property by false pretences. These ingredients are, (i) that there was a pretence'', (ii) that the pretence emanated from the defendant, (iii) that the pretence was false, (iv) that the defendant knew of its falsity or did not believe in its truth, (v) that there was an intention to defraud, (vi) that the thing is capable of being stolen, (vii) that the defendant induced the owner to transfer the property.72 These ingredients are in tandem with the provision of section 419 of the Criminal Code which provides as follows, 'Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any other person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years...' Section 1 of the Advance Fee Fraud and Other Related Offences Act 200673 is couched to criminalise the act of obtaining by false pretence regardless of whether the act is perpetrated in a physical or digital environment 74 The scope of criminalisation under the section covers both advance fee fraud activities carried out with the intention of defrauding persons in Nigeria or any other country. From the forgoing, it is clear that the mere fact that a person obtains money or property from another does not ipso facto render him liable for an offence under this heading except he does so by fraudulence "(1704) 2 Ld Raym 1013. "Generally, in Nigeria and many countries of the world, the axiom 419' refers to a complex list of fraud offences which in ordinary parlance are related to stealing, cheating, falsification, impersonation, counterfeiting, forgery and fraudulent representation of facts etc. "LER [2018] CA/U1105c /2011. 'Note that pretence is an intent to defraud, and means an intent to induce a victim by deceit to act to his detriment. It is immaterial that there was no intention to cause pecuniary or economic loss to the victim. In R v ,4bunah (1961) All N.L.R 635a legal practitioner represented the accused in a case which was settled as a result of which some monies were paid into Court for the benefit of the complainant. The Legal Practitioner induced the Court's cashier to pay the money to him by falsely representing that he has the complainant's authority to withdraw the money. The Legal practitioner who was charged with obtaining by false pretences argued that he took the money solely to enhance his bargaining position for his fees. Indeed the fees were negotiated and agreed upon and the balance was paid over to the complainant. It was however held that both the complainant and the Treasury weredefrauded in that the complainant was put at a disadvantage in the discussion over the Legal Practitioner's fees and that although the legal practitioner may riot have intended the Treasury to suffer any loss, yet it was induced to part with money to a person not entitled to it. Onwudiwe v FRN (2006)10 NWLR (pt. 988) 382; Mike Amadi v FRN (2008) 18 NWLR (pt 1119) 259; Kole Bello v Federal Republic of NigeriaLER [2018] CA/U1105c /2011. Sec section 20. In this section, the false representation must be in fact or in law 74 Advance Fee Fraud, section 1(1). 30 Corruption offences and penalties in Nigeria: A critical and conaparative Oladinseji 1. 'down analysis of the criminal and penal codes provisions means.75 Under the P al Code76, the central ingredients which constitute the offence of cheating is deception. Thus, in Anna Omueda v Federal Republic of Nigeria77the Court emphasized "deception78" as the central ingredients which constitute the offence of cheating. It should be borne in mind that by virtue of the enactment of the Advance Fee Fraud Act, the prohibition of fraud offences cover not only public officers, but private persons as well. Thus, in Nweke v. FRIV79, the Appeal Court held that when the provisions of section 251 (1) of the 1999 Constitution (as amended) and section 14 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 are read together, it is crystal clear that the Federal High Court has jurisdiction to try private citizens under section 1 of the Advance Fee Fraud and other Fraud Related Offences Act 2006. a° b. Punishments for Fraud In Nigeria, any person who commits fraud is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine 8' This is notwithstanding the punishment created under the Criminal Code which is, generally, three years imprisonment, but seven years if the thing is of value of one thousand naira or upwards and under the Penal Code which is, generally, three years imprisonment82, but a term which may extend to five83 or seven yearssa imprisonment in some specific cases. The reason for the foregoing is because section 1 (1) of the Advance Fee Fraud Act 2006, section 1(3) provides in relation to the overriding power of the Act that, "Notwithstanding anything contained in any other enactment or law." Thus, the punishment under the Act supersedes the punishments provided in both Criminal and Penal Codes. 'The main difference between obtaining by false pretences ('419' scam) and stealing is the 'false pretence' which is the major element in '419' scam. Mohamed Chawki, 'Nigeria Tackles Advance Fee Fraud'2009 Journal of Information, Law and Technology, June 2009 accessed 26 June 2020, 8:16pm. 7613efore the enactment of special law on Advance fee fraud in Nigeria, cases bordering on obtaining by false pretences in Northern Nigeria were charged under the provision of cheating in the Penal Code. The Advanced Fee Fraud Act was enacted to complement the provisions of the Criminal Code and Penal Code to serve as additional legislation against the ever-increasing wave of fraudulent activities in Nigeria. 7.7 (2018) LPELR-46592(CA) "The appellant was charged with committing the offence of cheating under Section 322 of the Penal Code, Kano State, the Court of Appeal set out the ingredients of the offence of cheating as follows: (1).That the person deceived delivered to someone or consented that some person shall retain some property and (2).That the person deceived was induced by the accused to part with property; and (3)_That the person deceived acted upon the inducement of the accused; and (4).That the accused acted fraudulently or dishonestly while inducing that person." 74 Deceiving means to make a person believe what is false to be true or to make a person disbelieve what is true to be false by using words or by conduct "(2019) LPELR-46946(SC). "'bid, Pp. 13-21, Paras. A-C. 41 Advance Fee Fraud Act 2006, s 1(3) Penal Code, s 322 !bid, s 323 'bid, s 325 31 Unimaid Journal of Private and Properly Law Vol 5 No. 1 2. Conclusion and Recommendations In this study, an in-depth comparative analysis of the provisions of the Criminal and Penal Code on corruption offences and penalties has been• provided, taking into consideration corrupt practices of bribery and fraud. From the evaluation undertaken, the study observed that the focus of the Criminal Code and the Penal Code with regard to corruption offences is limited to the public sector, thereby neglecting the private sector. However, there are complementary legislation such as the ICPC Act, EFCC Act, and Money Laundering Act etc. that targets corruption in the public, as well as private sectors. Also, a number of the corruption offences embodied both the Criminal and Penal Code are overlapping, difficulty worded, ambiguous, wrongly classified and scattered throughout the two codes. The penalties are too light, as the gap between the corruption offences and the punishments are too wide, therefore, capable of encouraging corruption. It is further observed that the two codes failed to make provisions for restitution and or forfeiture of corruptly acquired property or money. Taking into consideration the analysis presented, the study, therefore, concludes that the provisions of the Criminal and Penal Codes on corruption offences and penalties lack the efficacy to deal effectively with corruption in Nigeria. To clinch a practical and efficacious anti-con-uption law in Nigeria, therefore, the study recommends that the federal and state governments should utilise their concurrent powers of law making to commence a holistic Iaw reform process that will make it possible for the anti- corruption laws in Nigeria to operate as a unified whole. In doing this, scholars, honourable justices, lawyers, civil society organisations, and notable well-meaning Nigerians should be assembled to provide insights. Very importantly, also, the anti- corruption laws in Nigeria should be imbued with preventive legal mechanism. In other words, a "follow- the money" legal provisions should be intricately designed into the anti-corruption laws such that from the point of disbursement all through to execution of projects, breaches and infractions will be identified, tried and prosecuted instead of waiting for someone to embezzle funds and thereafter wasting public fund to prosecute such cases in court. Thus, before the billions are stolen at all, the Iaw should be made to act. 32 Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14