What are the legislative and regulatory frameworks that oversee anti-corruption efforts in Nigeria, both in terms of prevention and enforcement of criminal actions?

The legislative and regulatory provisions that govern anti-corruption in Nigeria include:

• The 1999 constitution as amended. The fifth schedule of the 1999 Constitution, provides the Code of Conduct for Public Officers, which prohibits a public officer from asking for or accepting property or benefits of any kind on account of anything done or omitted to be done by him in the discharge of his duties.

• The Advance Fee Fraud and Other Fraud Offences Related Act 2006. The act prohibits offenses relating to false pretense and intention to defraud.

• The Economic and Financial Crimes Commission Act 2004The EFCC Act provides for the establishment of the Economic and Financial Crimes Commission saddled with the responsibility for the enforcement of all economic and financial crimes laws, among other things. The Act mandates the Commission to combat economic and financial crimes.

• The Criminal Code 2004. The Criminal Code is applicable to the Southern part of Nigeria, while the Penal Code is applicable to the Northern Part of Nigeria. Both legislations contain several sections that deal with corruption. Sections 98 of the Criminal Code and 115 of the Penal Code prohibit the offence of corruption by public officials or public servants for official acts.

• The Corrupt Practices and Other Related Offences Act established the Independent Corrupt practices and other Related Offences Act 2000, which, seeks to prohibit corrupt practices including bribery, fraud, extortion and money laundering and prescribes punishment for corrupt practices and related offences. Its penalties apply to both individuals and companies.

• Money Laundering Prevention and Prohibition Act, 2022.

• Fiscal Responsibility Act 2007

• Freedom of Information Act 2011.

• Nigeria Extractive Industries Transparency Initiative Act 2007

• The Executive Order 6 of 2018 (EO6) signed by the President on 5^th July 2018 on the preservation of suspicious assets recovered from corrupt public officials.

• Whistle-blowing Policy launched on 21st December 2016 in Nigeria is an anti-corruption programme that encourages people to voluntarily disclose information about fraud, bribery, looted government funds, financial misconduct, government assets, and any other form of corruption or theft to the Federal Ministry of Finance.

• Bank Verification Number (BVN) introduced in 2014 by the Central Bank of Nigeria, to protect customers' transactions and enhance confidence in the Nigerian banking Industry.

• The Treasury Single Account (TSA) is part of the economic reform of the Federal Government of Nigeria, put in place in 2012 to provide a unified structure of government bank accounts for all government transactions to curb corruption.

• SERVICOM is an acronym for Service Compact with all Nigerians. It was established in 2004 and is an initiative of the Federal Government of Nigeria conceived to promote effective and efficient service delivery in MDAs to ensure customer satisfaction and to manage the performance-expectation gap between government and citizens as well as other members of the public, on issues of service delivery.

• The Open Government Partnership (OGP) is an international multi-stakeholder initiative focused on improving transparency, accountability, citizen participation, and responsiveness to citizens through technology and innovation. The National Action Plan II effectively deals with issues of transparency in budgeting, procurement, taxation and natural resource governance, corruption, asset recovery 

Preventing criminal activities, including corruption, involves various branches of government collaborating and employing diverse measures, including legislation, regulations, and executive orders.

Which bilateral and multilateral instruments on anti-corruption have an effect in Nigeria?

The Nigerian government has ratified and implemented various bilateral and multilateral agreements aimed at combating corruption within the country. This has led to the establishment of anti-corruption units within government ministries and agencies, facilitating the criminalization of corrupt practices. These treaties encompass:

The United Nations International Convention against Corruption was signed by Nigeria in 2003 and came into force in 2004. 

• The African Union Anti-corruption Convention was ratified by Nigeria in 2003.

• ECOWAS Protocol against Corruption 2001.

• Inter-Governmental Action Group against Money Laundering in West Africa (GIABA) established by the Economic Community of West African States in 2000.

• Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act 1998.

Are there accessible directives or other guidance from enforcement authorities in Nigeria?

Instructions or guidance for evaluating law enforcement agencies engaged in combating corruption can be sourced from entities such as the Office of the President, the Police, the Department of State Security, and the National Assembly.

Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

The following organizations are tasked with enforcing the relevant laws and regulations:

The Independent Corrupt Practices and other Related Offences Commission (ICPC). Their powers include:

• Investigating reports of corruption regarding government and public officials.
• Prosecuting offenders of corrupt practices.
• Enlisting and fostering public support in combating corruption.

The Economic and Financial Crimes Commission (EFCC). Their powers include:

• Investigating and prosecuting economic and financial crimes, such as advance fee fraud, money laundering, counterfeiting, illegal charge transfers, computer credit fraud etc.
• Acting as the coordinator for Nigeria’s anti-money laundering drive.
• Acting as Nigeria Financial Intelligence Unit.

The Special Fraud Unit (SFU) of the Nigeria Police Force. Their powers include:

•  Investigating fraudulent activities using thorough investigative procedures.
•  Prosecuting serious and complex fraudulent activities within and outside Nigeria.
• Conducting research into potentially fraudulent activities.

The Public Complaints Commission's powers include:

• Receiving and treating complaints of administrative injustice from any person in Nigeria.
• Investigating any matter where injustice is alleged against any person by any government office, ministry, department, agency, or corporation.
• Arrest and prosecution of public officers who infringe upon the laws of the country.

The Code of Conduct Bureau has the following powers:

• To ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability.
• To mandate and establish a high standard of public morality in the conduct of government business.
• To enforce the provisions of the code of conduct or any law relating thereto.

What are the statistics regarding past and ongoing anti-corruption procedures in Nigeria?

Presently, anti-corruption procedures have undergone significant streamlining compared to the past. Anti-corruption agencies are adhering to prescribed procedures and processes, leading to a more outcome-driven approach. Over the last two decades, particularly since the establishment of the EFCC and other anti-corruption agencies, there has been increased publicity surrounding anti-corruption cases.

Historically, little attention was paid to corruption allegations, and only a small number of individuals, including corrupt politicians, government officials, and businesses, faced prosecution for corruption. However, since the inception of the EFCC and similar bodies, Nigeria's global corruption index has shown improvement.

Notably, the EFCC has prosecuted over 30 nationally prominent political figures and recovered more than US$11 billion. Over the last decade, approximately 3,373 cases have been brought to court. However, the Commission no longer publishes yearly conviction details on its website, as it previously did. In the Corruption Perceptions Index, Nigeria ranked 149th in 2020, down from 146th in 2019. This index assesses the perceived level of corruption within the Nigerian public sector in comparison to other countries and territories.

What are the shortcomings identified in Nigeria’s anti-corruption legislation (including recommendations of the Organisation for Economic Co-operation and Development, where applicable)?

Several shortcomings have been identified within Nigeria's anti-corruption legislation, including:

• Insufficient independence in prosecuting offenders.
• Politicization of certain legislative processes.
• Inadequate staff training.
• Judicial inefficiency.
• Challenges related to plea bargaining and systemic disorder.
• Lack of diligent prosecution.
• Immunity from prosecution under specific legislation.

Additionally, Nigeria is not affiliated with the Organisation for Economic Co-operation and Development (OECD), has not ratified the OECD Anti-bribery Convention, and has not received any recommendations from it.

• Definitions and scope of application

• How is ‘public corruption’ or ‘bribery of a public official’ defined in the anti-corruption legislation?

The Independent Corrupt Practices Commission (ICPC) Act of 2000 does not provide specific definitions for "public corruption" or "bribery of a public official." Instead, "corruption" is broadly defined to encompass bribery, fraud, and related offenses, while the act lists bribery of a public officer as an offense. Section 18 of the act outlines provisions regarding bribery of public officers, stipulating that:

• Any individual who offers gratification to a public officer, or if a public officer solicits, counsels, or accepts gratification as an inducement or reward for:
• Voting or refraining from voting at any public body meeting in favor of or against any measure, resolution, or question presented to the public body.

• Performing or refraining from performing or aiding in facilitating, expediting, delaying, hindering, or preventing the performance of any official act.

• Assisting in securing or preventing the approval of any vote or the granting of any contract, award, recognition, or advantage in favor of any person.

• Showing or refraining from showing favoritism or bias in their capacity as a public officer.

• How is a ‘public official’ defined in the anti-corruption legislation? How is a ‘foreign public official’ defined?

The ICPC Act defines a public official as an individual employed or engaged in any capacity within the public service of the Federation, State, or Local Government, as well as those in public corporations or private companies wholly or jointly established by any government or its agency, including subsidiaries, whether situated within or outside Nigeria. This definition also encompasses judicial officers serving in Magistrate, Area, or Customary courts or Tribunals.

In contrast, Nigerian anti-corruption laws do not offer a specific definition for a foreign public official. However, the United Nations International Convention against Corruption, which Nigeria has ratified but not yet domesticated, defines a foreign public official as anyone holding a legislative, executive, administrative, or judicial position in a foreign country, whether appointed or elected. This definition also includes individuals performing public functions for a foreign country, including within public agencies or enterprises. While not directly incorporated into Nigerian law, this definition from the convention may serve as persuasive authority in Nigerian courts.    

• How is ‘private corruption’ or ‘bribery in the private sector’ defined in the anti-corruption legislation?

The ICPC Act does not explicitly define private corruption or bribery within the private sector. While the act primarily targets corruption within public offices, government institutions, and agencies, its scope extends to prohibiting corruption and bribery within the private sector. This is because its provisions encompass both public officers and officials within private organizations.

• How is ‘bribe’ defined in the anti-corruption legislation?

Although bribery is not explicitly defined in the Nigerian Anti-corruption Act, the legislation describes the act of bribing a public officer as offering gratification or reward to induce or influence the performance or non-performance of official duties. This includes actions such as:

• Voting or refraining from voting on any measure, resolution, or question presented to a public body.
• Facilitating or obstructing the performance of official duties.
• Assisting or impeding the granting of contracts in favor of any individual.
• Showing favoritism or refraining from doing so in one's capacity as a public officer.

• What other criminal offenses are identified and defined in the anti-corruption legislation?

Other criminal offenses which are identified and defined in the anti-corruption legislation include:

• Giving and receiving of bribes to influence public duty.
• Fraudulent acquisition and receipt of properties
• Failure to report bribery transactions
• Concealment of information and frustration of investigation
• Provision of money for acts of terrorism
• Carrying acts of terrorism
• Accepting gratification
• Giving or accepting gratification through an agent.
• Offences committed through the postal system
• Making false statements or returns
• Using office or position for gratification
• Forfeiture of gratification and other penalties
• Bribery in relation to auctions, assisting, etc. in regard to contracts
• Dealing with property acquired through gratification
• Making false or misleading statements

• Can both individuals and companies be prosecuted under the anti-corruption legislation?

In Nigeria, both individuals and corporations can face prosecution under anti-corruption legislation. The EFCC Act and the Corrupt Practices and Other Related Offences Act authorize the prosecution of natural persons, legal entities, or any other collective body, whether corporate or unincorporated.

• Can foreign companies be prosecuted under the anti-corruption legislation?

The anti-corruption legislation does not include provisions for prosecuting foreign companies.

• Does the anti-corruption legislation have extraterritorial reach?

Certainly, section 66(1) of the ICPC Act stipulates that its provisions shall apply to Nigerian citizens and individuals granted permanent residence in Nigeria, both within and outside the country. Moreover, if an offense under this Act is committed by such individuals outside Nigeria, they may be prosecuted as if the offense occurred within Nigeria.

• Corruption and bribery
  • How are gifts, hospitality, and expenses treated in your jurisdiction?

Gifts, expenses, and hospitality are considered forms of gratification, which are prohibited under the act. Gratification, as defined in the act, encompasses money, donations, gifts, loans, fees, rewards, valuable securities, properties of any kind, or any other similar advantage given or promised to any person with the intent to influence that person in the performance or non-performance of their duties.

Paragraph 6 of the Code of Conduct for Public Officers further states that:

1. A public officer is prohibited from soliciting or accepting property or benefits for themselves or others based on their actions or omissions in the discharge of their duties.
2. Gifts or benefits received by a public officer from commercial firms, businesses, or individuals with government contracts are presumed to contravene the above unless proven otherwise.
3. Personal gifts or benefits from relatives or personal friends may be accepted by a public officer to the extent and on occasions recognized by custom.

• How are facilitation payments treated in your jurisdiction?

The anti-corruption laws do not explicitly forbid facilitation payments. However, the Code of Conduct for Public Officers prohibits any form of gratification or gifts offered to public officers while performing official duties. According to the Code, any gift or donation to a public officer during a public or ceremonial event is considered a gift to the institution represented by the officer. Consequently, the mere acceptance of such gifts does not constitute a violation of this provision.

• How is bribery through intermediaries and other third parties treated in your jurisdiction? Can those third parties be held liable?

Bribery involving intermediaries and third parties is expressly prohibited by anti-corruption laws. Third parties may be held accountable if their actions constitute an attempt to bribe a public official, regardless of whether they are acting on behalf of someone else.

• Can a company be held liable for bribery committed by management or other employees?

Indeed, while the anti-corruption legislation does not explicitly outline the liability of company management or employees, corporate entities are included in the definition of a "person" under the anti-corruption act. Consequently, the board of directors and management of a company can be held accountable for the company's actions. Additionally, provisions within the Company and Allied Matters Act and the Investment and Securities Act of 2007 further regulate corporate responsibilities and liabilities.

• Can a company be held liable for bribery committed by domestic or foreign subsidiaries?

The anti-corruption legislation does not explicitly address the liability of a company for bribery committed by its domestic or foreign subsidiaries. Typically, a parent company is legally distinct from its subsidiaries, as they are considered separate entities. However, in cases of fraud, the corporate veil may be pierced if the subsidiary acts as an agent of the parent company or if the parent company contractually assumes liability for the actions of its subsidiaries. Additionally, if there is evidence to suggest that the parent company knew or should have known about fraudulent activities perpetrated by its subsidiaries, it may be held accountable.

• Post-Merger or Acquisition can a successor company be held liable for bribery committed by legacy companies?

In general, a successor company is not typically held accountable for bribery committed by its former owners. However, when shares and liabilities are transferred to new owners, they may become responsible for past fraudulent activities and transactions.

• Compliance
• Is implementing an anti-corruption compliance program a regulatory requirement in your jurisdiction?

No, the anti-corruption law does not mandate the implementation of an anti-corruption program. However, certain legislations, such as the Money Laundering (Prevention and Prohibition) Act 2022 and the Central Bank of Nigeria (Anti-Money Laundering and Combating the Financing of Terrorism in Banks and other Financial Institutions in Nigeria) Regulations 2013, require financial institutions to establish compliance programs. While these regulations primarily focus on anti-money laundering measures, they also include provisions related to anti-corruption efforts.

• What compliance best practices should a company implement to mitigate the risk of anti-corruption violations?

While not mandated, implementing an anti-corruption program is highly recommended to mitigate the risk of anti-corruption violations. Establishing a corporate culture with zero tolerance for corruption, both internally and in interactions with third parties, is paramount.

Furthermore, for a robust compliance anti-corruption program, the following best practices are essential:

• Develop policies and procedures that explicitly prohibit the payment, giving, or offering of anything of value to government or corporate officials in exchange for business advantages or to gain an improper edge.

• Conduct a comprehensive risk assessment to identify potential warning signs, including:
• Where the company conducts its business.
• Whether the company engages third parties.
• The individuals or entities associated with the company's business activities.

Consideration should be given to countries with higher corruption indices when making decisions on conducting business. When engaging third parties and their affiliated companies, exercise caution and conduct thorough due diligence and background checks. Local embassies and legal experts can assist in this regard.

•  Training - Effective communication of compliance policies and procedures is crucial for their success and value. It is essential to ensure that training is delivered appropriately and to the relevant audience.

• Preventive Measures - Eliminating incentives for bribery is a key preventive measure companies can take to deter employees from engaging in corrupt practices. Proper monitoring and testing mechanisms can help identify issues at an early stage and prevent corruption from occurring.

A robust compliance program must be meticulously implemented and capable of addressing anti-corruption issues as they arise. By proactively preventing corruption problems and detecting issues early on, companies can take prompt remedial action and maintain a culture of compliance and ethical conduct. Designating a competent and independent compliance officer at the management level is crucial. This officer should report to the board on all anti-corruption matters and have the authority to develop anti-corruption programs, vet suspicious transactions, file regulatory reports, oversee compliance program implementation, and provide anti-corruption training and guidance to staff.

• Are companies obliged to report financial irregularities or actual or potential anti-corruption violations

Companies are required to report transactions lacking a lawful purpose to the relevant authorities, providing details such as background information, transaction purpose, and investigation findings. Both financial and non-financial institutions are mandated by Section 9 of the CBN Regulation 2013 and the Money Laundering (Prevention and Prohibition) Act 2022 to report any instances of financial irregularities or actual or potential anti-corruption violations.

• Does failure to implement an adequate anti-corruption program constitute a regulatory and/or criminal violation in your jurisdiction?

No, the failure to implement an anti-corruption program does not constitute a specific regulatory violation. However, failure to implement an anti-money laundering compliance program is considered a violation and can result in appropriate sanctions being imposed.

• Enforcement

•  Can companies that voluntarily report anti-corruption violations or cooperate with investigations benefit from leniency in your jurisdiction?

All crimes in Nigeria are prosecuted according to the criminal laws of the country. However, the option to negotiate plea bargains is acknowledged. Consequently, a company that voluntarily discloses anti-corruption violations or cooperates with investigations may have the opportunity to negotiate a plea bargain.

• Can the existence of an anti-corruption compliance program constitute a defense to charges of anti-corruption violations?

No, but it may mitigate sentencing.

• What other defenses are available to companies charged with anti-corruption violations?

Corruption constitutes a criminal offense, and the primary defense available to individuals or corporate organizations facing charges of corrupt practices is to demonstrate that the allegations are false or that the crime did not occur. Although an anti-corruption compliance program does not serve as a direct defense against charges of anti-corruption violations, it can significantly demonstrate the company's commitment to a culture of integrity and compliance.

• Can companies negotiate a pre-trial settlement through plea bargaining, settlement agreements, or similar?

The prosecutor has the Power to consider and accept plea bargains and settlement agreements from companies, provided it serves the interest of justice and does not constitute an abuse of the legal process. The notion of plea bargaining is acknowledged within the EFCC Act and the Administration of Criminal Justice Act.

• What penalties can be imposed for violations of the anti-corruption legislation? Can non-exhaustive penalties be imposed for such violations (e.g., exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?

The typical penalties for breaches of anti-corruption laws include imprisonment, fines, and asset forfeiture.

• What is the statute of limitations to prosecute anti-corruption violations in your jurisdiction?

Criminal and corruption-related cases are not statute-barred in Nigeria.

• Trends and predictions

• How would you describe the current anti-corruption enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The anti-corruption enforcement commission has been actively engaged in numerous investigations, arrests, and detentions, resulting in indictments, the recovery of stolen funds, and imprisonment. Some of its notable investigations include the case involving the former Inspector General of Police, Tafa Balogun, who was accused of embezzling over $121 million. Balogun received a six-month jail sentence, a $30,000 fine, and had assets worth $150 million seized.

Additionally, the commission arrested Hon. Morris Ibekwe, a former member of the Imo State House of Representatives, for allegedly defrauding a German national of $300,000. Other prominent cases include those involving the former Governor of Lagos State, Major General Mohammed Buba Marwa; former Chairman of the Nigeria Ports Authority, Bode George; former Governor of Bayelsa State, Chief Depreye Alamieyeseigha; and former Governor of Plateau State, Joshua Dariye, who received a 10-year prison sentence in 2018, among others.

In efforts to combat corruption at the state level, the Lagos State Governor recently enacted the 'Lagos State Public Complaints and Anti-Corruption Commission Law 2021'. This law is specific to Lagos State and enables the prosecution of corruption cases within the state jurisdiction.

• Tips and traps

•  What are your top tips for the smooth implementation of a robust anti-corruption compliance program and what potential sticking points would you highlight?

The anti-corruption legislation, along with its enforcement agencies, has endeavored to combat corruption in Nigeria through various means. However, the following recommendations can significantly contribute to the effective implementation of a robust anti-corruption compliance framework:

• Imposition of strict penalties to deter individuals from engaging in corrupt practices.
  • Removal of immunity provisions for certain public officials to ensure accountability for their actions.
  • Expansion of the judicial system by increasing the number of courts to expedite the delivery of judgments. Many anti-corruption cases endure lengthy delays before reaching a verdict.
  • Establishment of a robust monitoring system that continuously oversees transactions, holds individuals accountable and conducts regular audits of transactions.