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ECONOMIC & FINANCIAL CRIME COMMISSION
The Impact of Freedom of Information Act on
Corruption and Fraud Prevention in a Democratic Society
By
Juliet Ume-Ezeoke, LLM1.
Presented to the Senate Committee on Information
Tuesday 26, March 2005
The Impact of Freedom of Information Act on
Corruption and Fraud Prevention in a Democratic Society
“Knowledge is power and those
who possess it have the power to rule”2
Distinguished Senators:
It is a privilege to be called upon to discuss an issue
which has taken us more than five years of negotiation to get to where we
are today. It is the hope of every Nigerian that this exercise will be the
last in a series of discussions and negotiations in enacting the Freedom
of Information (FOI) Act.
I. Introduction
The right to information is often associated with media
requests for information held by government departments. However, in its
generic form, it refers to the people’s right to know about the actions of
their government in order to enhance transparency and informed democratic
participation3.
The public has a right to access records and documents
(government data) held by public bodies in which the business of the
people is stored in some tangible form. In turn, public bodies are obliged
to respond to requests for information or publish and disseminate widely,
documents that hold information that is in the public interest. This
includes the public’s right of access to the deliberative process of
government like Parliament and Parliamentary committees.
In a democratic dispensation, a Freedom of Information Act
is needed to give legal form and force to this principle to compel public
and private bodies to respond expeditiously to requests for information by
the citizenry except where it is reasonably justifiable in a democracy to
withhold such information.
II. What does the FOI Act do and how does
it work as a crime prevention tool?
The success of any governing institution can only be
measured by its ability to provided a participatory approach to governance
where the citizens who elected or nominated the leaders into office are
provided with the opportunity to appraise and comment on day to day
activity of their rulers.
In discussing crime here, particular reference is made to
the definition of economic and financial crimes under Section 46 of the
Economic and Financial Crimes (Establishment) Act, 20044. The
definition is broad enough to cover wide-ranging issues including corrupt
malpractices. The underpinning notion here is that the criminal activity
violates existing legislation which govern economic activities of
government.
It is only important therefore that such criminal
activities should be guarded against. We should not wait for the crime to
be committed before we look for remedies and that is the whole essence of
Freedom of Information Act.
It is a piece of legislation aimed at preventing and
protecting the citizens from the abusive powers of oppressive rulers. The
greatest tool available to anti-corruption and fraud prevention
institution and indeed the citizen is the ability to access information.
An investigation on fraud cannot come to a logical conclusion unless an
investigation has enough evidence to provide to the lawyers who will now
prosecute.
However, a citizen becomes utterly powerless if s/he cannot
access any information to enable s/he make an informed judgment or
decision regarding a case of corruption.
As a prevention tool, the FOI Act acts as an early warning
signal to public officials and indeed any body appointed to a position of
authority both in the public and private sector. It acts as a deterrence
measure in restraining the abuse of public office for private again. When
an officer knows when being sworn into office that any Nigerian citizen
can have access to records concerning his decisions, actions or inactions
while in office, s/he would proceed carefully and make sure that laid down
guidelines are applied before taking any decision or using public funds.
The abuse of public office for private gain which has become prevalent in
Nigeria today would not have been rampant if we had such a law in place.
The three years conviction recommended in Section 10 of the proposed FOI
Act for any head of agency who willfully destroys or attempts to alter any
document in his custody before releasing it to a requester is a welcome
development.
III. How does it help the Anti-corruption and
Fraud Prevent Agencies such as the Code of Conduct Bureau (CCB),
Independent Corrupt Practices Commission (ICPC), Economic and Financial
Crime Commission (EFCC) and the Police?
We all know that the Nigerian Criminal Justice System has
been bedeviled by technical applications of law and obsolete laws which
ought to have undergone reforms long before now. One of the challenges of
prosecuting criminal cases is the onus that lies on the prosecutor to
ensure that his case can be proved beyond reasonable doubt. Now in the
case of a corruption or fraud, would any prosecutor ever be able to prove
a case of corruption or economic and financial crimes beyond reasonable
doubt when it is glaringly clear that any body who proceeds to commit such
a crime will always take necessary steps to cover up his or her actions by
destroying the records, or prevent access to such documents under the
guise of “in the interest of national security” when it is indeed meant
for “the interest of personal security”.
The Anti-Corruption laws in Nigeria such as the ICPC Act,
2000, the EFCC Act and the Code of Conduct Bureau and Tribunal is framed
in a such a way that it is vital for the public to participate actively
for it to succeed. The public is required to report to the various
institutions, acts of corruption and economic and financial crimes.
However, the laws failed to provide the citizen freedom to
access that information they need to be able to participate actively in
the fight against fraud and corruption in the country. In addition, no
specific provision has been made till date regarding the protection of
those who take the burden of blowing the whistle against their employers.
We have witnessed recently how difficult it is for a
citizen to report fraud and corruption related cases in Nigeria following
the various cases emanating from the various arms of Government both at
the national and state level. We are witnesses to wanton destruction of
properties by arsonists who try to destroy records related to crimes they
have committed in the past. We have also witnessed the tireless efforts of
our past leaders who have refused to answer to their wrongdoing by using
the technicalities that abound in our legal jurisprudence as a shield for
not providing the Nigerian public with an explanation for their actions.
Indeed, we are living in an era where private persons will refuse to
release public information because it will affect his political interest.
In such an era of secrecy, how possible is it for any law enforcement
agency to gather evidence to be able to prosecute those in high places who
are today sheltered by secrecy, corruption, repression, and human right
abuse?
This abuse of public trust has been compounded by excessive
bank secrecy, coupled with offshore financial centers, some of whom
advertise their missions as being to help customers – corrupt political
leaders among them – to keep their assets away from prying eyes.
Reporting these crimes has been made more difficult by lack
of FOI Act and the Whistle Blowers Act which is long over due. The Enron
Case5 in the US which has been replicated here by the SGBN6
case are evidence of what suppression of information can cause the public
and the economy. The latest corporation to get the axe of the law is the
WorldCom, hitherto known as the world’s giant telecommunication company
for alleged cover up of financial malpractices by the leadership. In
countries with clear laws on freedom of information, prosecution are a lot
easier. Today, the Chief Executives of Enron and WorldCom have been
convicted while in Nigeria, the slow criminal justice system and lack of
information has continued to slow down the pace of investigation and
trial.
IV. Current Status of Nigerian Anti-Corruption
Laws on FOI
(a) The ICPC Act provides for prevention mechanisms
under S 6 (b), (c), (d), (e), and (f). The Anti-Corruption Agency is
empowered to introduce procedures and practices to frustrate corruption
before it occurs. The Agency can advise heads of services and institutions
on practices that will reduce corruption. It has the responsibility to
educate the public against bribery, corruption and related offences and
its mandates enable it to enlist the public support in fighting
corruption.
However, without FOI Act, it is impossible to access
information that will enable ICPC entrench prevention mechanisms in place.
Secondly, within the context of ICPC Act, S. 27 requires
anybody reporting a crime to submit it orally or in writing and such oral
information must be reduced into writing by an officer of the Commission.
However the challenge in implementing this Act in reality is that Nigerian
citizens do not have any access to any record that will enable them to
report a case to ICPC!! So what happens? ICPC becomes emasculated. It
cannot investigate a case that has not been reported to it because the Act
does not allow it to be proactive and the same Act does not provide any
other alternative means of getting reports proactively without waiting for
the public to report.
In my own opinion, it is only the FOI Act that will resolve
this dilemma. An FOI Act will enable the citizens to obtain enough records
or information to report a suspicious case of corrupt enrichment by a
public official to ICPC.
(b) The 1999 Constitution requires every
public official to declare assets to the Code of Conduct Bureau but the
Code of Conduct Bureau is also handicapped because the citizens cannot
access information on property owed by public officials in order to enable
them act as effective watch dogs.
The rationale behind the full disclosure of assets by
public officials when assuming office is defeated if the public is not
allowed to access that information as part of a monitoring mechanism. The
public can only report disparity in the assets of a serving officer when
they are allowed to check the status before and after the officer has left
office.
In the absence of an FOI Act, our anti-corruption and fraud
prevention mechanism will remain an illusion as was illustrated by the
recent decision of the Court on a case of Money Laundering against Joshua
Dariye, a serving Governor in Plateau State, who is today in the wanted
list of the international police (INTERPOL). The recent decision by the
Code of Conduct Tribunal not to allow the Punch newspapers access to the
Assets Declaration Forms of high-level Government officials is an
indication that our desire to reduce corruption in the country has a long
way to go but the FOI can get us to the desired target faster if we so
desire.
(c) With regards to EFCC, Section 7 of the EFCC Act
which confers special powers on the Commission to investigate any Nigerian
who is found to be living above his means is an interesting departure from
the previous legislations we have had in the past but its effective
implementation requires public participation since Commission cannot
spread its tentacles in every nooks and crannies of the country. Though
Section 39 of the Act protects any informant who has reported a case to
EFCC, it is still not sufficient tool in accessing information because it
presumes that such a person already has access to the information. It is
only the FOI Act that will empower the public to become more active
participants not only in the way we are governed but in preventing crimes
before they occur.
It is also interesting to note an important development in
our law. Section 12 of 2004 Money Laundering Act allows surveillance, wire
tapping, and computer tracking tool to be used in the investigation of
crime related to economic and financial crime. The provision disallows the
invoking of banking secrecy as a ground for objecting to give evidence in
a Bank fraud for the purpose of preserving customer confidentiality but
this access to information can only be applied by law enforcement officers
and not by the public.
However, the impact of this legislation when read together
with the FOI Act is that it recognizes the fact that access to information
is vital in detecting and prosecuting criminal conducts. In the absence of
a regime of FOI, the task of an investigator is made more difficult and
often creates an opportunity for evasion of the law by those who destroy
our economy.
V. Impact of Transparency and Accountability
Mechanisms
The FOI Act will improve transparency and accountability
rating of the country. Public Records which were hitherto shrouded in
secrecy will now be made available in the public domain for public
scrutiny and thus create an enabling environment for fraud prevention and
corruption control.
VI. Conclusion
It is my humble submission that the amount of resources
spent on investigation and prosecution by multiple law enforcement
agencies can be reduced if the citizens are empowered through the FOI Act
to act as watchdogs not only for the purpose of reporting the crime but to
make sure that acts of corruption and fraud are frustrated before it
commission.
I urge the distinguished Senators herein present to make
haste while the sun shines by passing this Bill in to law within the
shortest possible time. Not only will the Act endear you to the people in
your various constituency, but I wish to reinstate that the FOI Act will
be the greatest single legacy that the current administration will give to
the people of this country. It will create opportunities yet unheard of
for the future generation by correcting the wrongs of yesterday and most
importantly enabling us to channel our resources to social development
that will benefit Nigerian masses.
Thank you.
1 Head of External
Corporation and Member, International Media Lawyers Association, UK
2 James Madison, letter to
W. T. Barry, August 4, 1822
3 Rodney A. Smoller,
Democracy Papers #10, page 1.
4 Economic and Financial
Crime means – the non-violent crime and illicit activity committed with
the objective of earning wealth illegally either individually or in a
group or organized manner thereby violating existing legislation governing
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 practices, illegal arms deal,
smuggling, human trafficking, and child labor, illegal oil bunkering, and
illegal mining, tax evasion, foreign exchange malpractices including
counterfeiting of currency, theft of intellectual property, and piracy,
open market abuse, dumping of toxic wastes and prohibited goods, etc…
5 The cover up of bad
financial status for a long time by managers, auditors and accountants led
to the demise of the world’s largest corporation
6 The Societie Generale
Bank of Nigeria is currently under probe for engaging in financial
malpractices through covering up actual financial status which has led to
the loss of millions of Naira by Government agencies and shareholders |
