17August2017

Corruption: Challenge to good governance and development in Nigeria

Lecture delivered by Hon. Justice Olubunmi Oyewole of the High Hourt of Lagos State on 7th August, 2010 at the National Convention of Charleans in Diaspora held at Irving Convention Plaza, Irving, Texas marking the 50th anniversary celebration of St Charles’ Grammar School, Osogbo.

INTRODUCTION

The Distinguished Chairman of this Convention, The President St Charles Grammar School Old Boys Association, The President and leadership of Charleans in Diaspora, Worthy Seniors, Fellow Charleans, Ladies and Gentlemen.

I am most humbled for the exceptional privilege to address this august gathering of distinguished and accomplished Charleans in the appropriate month of August!    

Our chosen topic is of fundamental importance to us as Nigerians a few days to the 50th independence anniversary our beloved nation. At 50 our nation cannot guarantee the most basic comfort to her citizens. Our educational system is in shambles, health care is virtually non-existent, security is not assured and efficient basic infrastructures remain utopian. All we have to show are unrealized promises and of course tales of good old days that were anything but good at their time.

May I recall an anecdote made popular by Prof Kole Omotosho in the mid 80s about the development of our country, Nigeria. According to my recollection of the erudite Professor, some nations of the world went to consult a deity about their future and how long it will take them to be developed. First was China and the deity told China it would take it 10 years upon which the Chinese leader busted into tears that the period was too long.

Next to go before the deity was Malaysia and the deity said 20 years upon which once again the Malaysian leader busted into tears.

Then came India and the deity said it would take that nation 50 years, like the others before him, the Indian leader busted into tears.

Thereafter came Nigeria. The deity took a long look at the future of Nigeria, looked at its leader and busted into tears. Sad as the anecdote portends, the reality of our sojourn in the last 50 years appears to be validating it. 

Our topic suggests a conclusion that behind our failures and perpetual reversals in the attainment of development and good governance as a nation is corruption. I agree. In this presentation therefore I shall attempt to demonstrate how this could be so.

WHAT IS CORRUPTION

Before talking of the challenges corruption poses, it is perhaps well to define, discuss and analyse and focus attention on some of the evils corruption have plague on our country. It means different things to different people, to those who believe in a decent and moralistic society it is a deadly disease, a malaise, a cankerworm, an evil that is destructive and ravenous. It symbolizes decay, degradation, debasement of societal values, ethical norms and values on which a decent society is structured.  Hence Transparency International defines it as the use of public office for private gain. 

Consider one of the most popular of these definitions, namely, ‘Corruption is the abuse of power by a public official for private gain.’ No doubt the abuse of public offices for private gain is paradigmatic of corruption. But when a bettor bribes a boxer to ‘throw’ a fight this is corruption for private gain, but it need not involve any public office holder; the roles of boxer and bettor are usually not public offices.

A working definition of corruption is also provided as follows in Article 3 of The Civil Law Convention on Corruption (ETS174): For the purpose of this Convention, "corruption" means requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behaviour required of the recipient of the bribe, the undue advantage or the prospect thereof.

One response to this is to distinguish public corruption from private corruption, and to argue that the above definition is a definition only of public corruption. But if ordinary citizens lie when they give testimony in court, this is corruption; it is corruption of the criminal justice system. However, it does not involve abuse of a public office by a public official. And when police fabricate evidence out of a misplaced sense of justice, this is corruption of a public office, but not for private gain.

In the light of the failure of such analytical-style definitions it is tempting to try to sidestep the problem of providing a theoretical account of the concept of corruption by simply identifying corruption with specific legal and/or moral offences.

Secondly, corruption is not necessarily economic in character. An academic who plagiarises the work of others is not committing an economic crime or misdemeanour; and she might be committing plagiarism simply in order to increase her academic status. There might not be any financial benefit sought or gained. Academics are more strongly motivated by status, rather than by wealth. A police officer who fabricates evidence against a person he believes to be guilty of paedophilia is not committing an economic crime; and he might do so because he believes the accused to be guilty, and does not want him to go unpunished. Economics is not necessarily involved as an element of the officer's crime or as a motivation. When police do wrong they are often motivated by a misplaced sense of justice, rather than by financial reward. Again, a person in authority motivated by sadistic pleasure who abuses her power by meting out cruel and unjust treatment to those subject to her authority, is not engaging in an economic crime; and she is not motivated by economic considerations. Many of those who occupy positions of authority are motivated by a desire to exercise power for its own sake, rather than by a desire for financial reward.

Economic corruption is an important form of corruption; however, it is not the only form of corruption. There are non-economic forms of corruption, including many types of police corruption, judicial corruption, political corruption, academic corruption, and so on. Indeed, there are at least as many forms of corruption as there are human institutions that might become corrupted. Further, economic gain is not the only motivation for corruption. There are a variety of different kinds of attractions that motivate corruption. These include status, power, addiction to drugs or gambling, and sexual gratification, as well as economic gain.

We can conclude that the various currently influential definitions of corruption, and the recent attempts to circumscribe corruption by listing paradigmatic offences, have failed. They failed in large part because the class of corrupt actions comprises an extremely diverse array of types of moral and legal offences.

That said, some progress has been made. At the very least, we have identified corruption as fundamentally a moral, as opposed to legal, phenomenon. Acts can be corrupt even though they are, and even ought to be, legal. Moreover, it is evident that not all acts of immorality are acts of corruption; corruption is only one species of immorality. Consider an otherwise gentle husband who in a fit of anger strikes his adulterous wife and accidentally kills her. The husband has committed an act that is morally wrong; he has committed murder, or perhaps culpable homicide, or at least manslaughter. But his action is not necessarily an act of corruption. Obviously the person who is killed (the wife) is not corrupted in the process of being killed. Moreover, the act of killing does not necessarily corrupt the perpetrator (the husband). Perhaps the person who commits a wrongful killing (the husband) does so just once and in mitigating circumstances, and also suffers remorse. Revulsion at his act of killing might cause such a person to embark thereafter on a life of moral rectitude. If so, the person has not been corrupted as a result of his wrongful act.

An important distinction in this regard, is the distinction between human rights violations and corruption. Genocide is a profound moral wrong; but it is not corruption. This is not to say that there is not an important relationship between human rights violations and corruption; on the contrary, there is often a close and mutually reinforcing nexus between them (Pearson 2001). Consider the endemic corruption and large-scale human rights abuse that have taken place in authoritarian regimes, such as that of Idi Amin in Uganda and that of Suharto in Indonesia. And there is increasing empirical evidence of an admittedly complex causal connection between corruption and the infringement of subsistence rights; there is evidence, that is, of a causal relation between corruption and poverty. Indeed, some human rights violations are also acts of corruption. For example, wrongfully and unlawfully incarcerating one's political opponent is a human rights violation; but it is also corrupting the political and judicial processes.

Let us assume that there are at least two general forms of corruption, namely institutional corruption and non-institutional personal corruption. Non-institutional personal corruption is corruption of persons outside institutional settings. Such corruption pertains to the moral character of persons, and consists in the despoiling of their moral character. If an action has a corrupting effect on a person's character, it will typically be corrosive of one or more of a person's virtues. These virtues might be virtues that attach to the person qua human being, e.g. the virtues of compassion and fairness in one's dealings with other human beings. Alternatively — or in some cases, additionally — these virtues might attach to persons qua occupants of specific institutional roles, e.g. impartiality in a judge or objectivity in a journalist.

Nevertheless, it is plausible that corruption in general, including institutional corruption, typically involves the despoiling of the moral character of persons and in particular, in the case of institutional corruption, the despoiling of the moral character of institutional role occupants. To this extent institutional corruption involves personal corruption.

Note that personal corruption, i.e., being corrupted, is not the same thing as performing a corrupt action, i.e., being a corruptor. Typically, corruptors are corrupted, but this is not necessarily the case. Note also that corruptors are not simply persons who perform actions that corrupt, they are also morally responsible for this corruption. 

Note also in relation to personal corruption that there is a distinction to be made between possession of a virtue and possession of a disposition to behave in certain ways. Virtues consist in part in dispositions, but are not wholly constituted by dispositions. A compassionate person, for example, is disposed to help people. But such a person also experiences certain emotional states, and understands other people in a certain light; compassion involves non-dispositional states. Moreover, a compassionate person has actually performed compassionate acts; he or she is not simply disposed to do so. Accordingly, while personal corruption may consist in part in the development or suppression of certain dispositions, e.g., in developing the disposition to accept bribes or in suppressing the disposition to refuse them, the development or suppression of such dispositions would not normally constitute the corruption of persons. Thus a person who has a disposition to accept bribes but who is never offered any is not corrupt, except perhaps in an attenuated sense.

Naturally, in the case of institutional corruption typically greater institutional damage is being done than simply the despoiling of the moral character of the institutional role occupants. Specifically, institutional processes are being undermined, and/or institutional purposes subverted.

However, the undermining of institutional processes and/or purposes is not a sufficient condition for institutional corruption. Acts of institutional damage that are not performed by a corruptor and also do not corrupt persons are better characterized as acts of institutional corrosion. Consider, for example, funding decisions that gradually reduce public monies allocated to the court system in some large jurisdiction. As a consequence, magistrates might be progressively less well trained and there might be fewer and fewer of them to deal with the gradually increasing workload of cases. This may well lead to a diminution over decades in the quality of the adjudications of these magistrates, and so the judicial processes are to an extent undermined. However, given the size of the jurisdiction and the incremental nature of these changes, neither the magistrates, nor anyone else, might be aware of this process of judicial corrosion, or even able to become aware of it (given heavy workloads, absence of statistical information, etc.). It seems that these judges have not undergone a process of personal corruption, and this is the reason we are disinclined to view this situation as one of institutional corruption.

One residual question here is whether or not institutional role corruption could exist in the absence of the undermining of institutional processes and/or institutional purposes. Perhaps it could not for the reason that an institutional role is defined in large part in terms of the institutional purposes that the role serves as well as the institutional processes in which the role occupant participates in the service of those institutional purposes. 

The hypothesis is that, to be corrupt, an action must involve a corruptor who performs the action or a person who is corrupted by it. Of course, corruptor and corrupted need not necessarily be the same person, and indeed there need not be both a corruptor and a corrupted; all that is required is that there be a corruptor or a corrupted person.

If a serviceable definition of the concept of a corrupt action is to be found — and specifically, one that does not collapse into the more general notion of an immoral action — then attention needs to be focussed on the moral effects that some actions have on persons and institutions. An action is corrupt only if it corrupts something or someone — so corruption is not only a moral concept, but also a causal or quasi-causal concept.] That is, an action is corrupt by virtue of having a corrupting effect on a person's moral character or on an institutional process or purpose. If an action has a corrupting effect on an institution, undermining institutional processes or purposes, then typically — but not necessarily — it has a corrupting effect also on persons qua role occupants in the affected institutions.

In this regard, note that an infringement of a specific law or institutional rule does not in and of itself constitute an act of institutional corruption. In order to do so, any such infringement needs to have an institutional effect, e.g., to defeat the institutional purpose of the rule, to subvert the institutional process governed by the rule, or to contribute to the despoiling of the moral character of a role occupant qua role occupant. In short, we need to distinguish between the offence considered in itself and the institutional effect of committing that offence. Considered in itself the offence of, say, lying is an infringement of a law, rule, and/or a moral principle. However, the offence is only an act of institutional corruption if it has some effect, e.g., it is performed in a courtroom setting and thereby subverts the judicial process.

A further point to be made here is that an act that has a corrupting effect might not be a moral offence considered in itself. For example, the provision of information by a corporate officer to an investor that will enable the investor to buy shares cheaply before they rise in value might not be a moral offence considered in itself; in general, providing information is an innocuous activity. However, in this corporate setting it might constitute insider trading, and do institutional damage; as such, it is an act of corruption.

A final point concerns the alleged responsibility for corruption of external non-institutional actors in contexts in which there are mediating internal institutional actors. In general, an act performed by an external non-institutional actor is not an act of institutional corruption if there is a mediating institutional actor who is fully responsible for the institutional harm. Consider an accountant who is besotted with a woman with expensive tastes. His obsession with the woman causes him to spend money on her that he does not have. Accordingly, he embezzles money from the company he works for. There is a causal chain of sorts from her expensive tastes to his act of embezzlement and the consequent institutional harm that his act in turn causes. However, she is not an institutional corruptor; rather he is. For he is fully responsible for his act of embezzlement, and it is this act — and this act alone — that constitutes an act of institutional corruption. It does so by virtue of the institutional harm that it does.

An act might undermine an institutional process or purpose without the person who performed it intending this effect, foreseeing this effect, or indeed even being in a position such that they could or should have foreseen this effect. Such an act may well be an act of corrosion, but it would not necessarily be an act of corruption. Consider our magistrates example involving a diminution over time in the quality of the adjudications of these magistrates. Neither the government and other officials responsible for resourcing and training the magistracy, nor the magistrates themselves, intend or foresee this institutional harm; indeed, perhaps no-one could reasonably have foreseen the harmful effects of these shortcomings in training and failure to respond to increased workloads. This is judicial corrosion, but not judicial corruption.

Because persons who perform corrupt actions (corruptors) intend or foresee — or at least should have foreseen —the corrupting effect their actions would have, these persons typically are blameworthy, but not necessarily so. For there are cases in which someone knowingly performs a corrupt action but is, say, coerced into so doing, and is therefore not blameworthy. So on this view it is possible to perform an act of corruption, be morally responsible for performing it, and yet remain blameless.

Moreover, we earlier distinguished between two species of corruptor. There are those corruptors who are morally responsible for their corrupt actions. And there are those corruptors who are not responsible for their corrupt character, but whose actions are: (a) an expression of their corrupted character, and; (b) actions that have a corrupting effect.

Accordingly, we now have a threefold distinction in relation to corruptors: (1) corruptors who are morally responsible for their corrupt action and blameworthy; (2) corruptors who are morally responsible for their corrupt action and blameless; (3) corruptors who are not morally responsible for having a corrupt character, but whose actions are: (a) expressive of their corrupt character, and; (b) actions that have a corrupting effect.  The contrast here is twofold. In the first place, persons are being contrasted with institutional processes and purposes that might be subverted. In the second place, those who are corrupted are being contrasted with those who corrupt (the corruptors).

Those who are corrupted have to some extent, or in some sense, allowed themselves to be corrupted; they are participants in the process of their corruption. Specifically, they have chosen to perform the actions which ultimately had the corrupting effect on them, and they could have chosen otherwise. In this respect, the corrupted are no different from the corruptors.

A corruptor of other persons or institutional processes can in performing these corrupt actions also and simultaneously be producing corrupting effects on him or herself. That is, acts of corruption can have, and typically do have, a side effect in relation to the corruptor. They not only corrupt the person and/or institutional process that they are intended to corrupt; they also corrupt the corruptor, albeit usually unintentionally. Consider bribery in relation to a tendering process. The bribe corrupts the tendering process; and it will probably have a corrupting effect on the moral character of the bribe-taker. However, in addition, it might well have a corrupting effect on the moral character of the bribe-giver.

Here we need to distinguish between a corrupt action that has no effect on an institutional process or on another person, but which contributes to the corruption of the character of the would-be corruptor; and a non-corrupt action which is a mere expression of a corrupt moral character but which has no corrupting effect either on the agent or on anyone or anything else. In this connection consider two sorts of would-be bribe-givers whose bribes are rejected. Suppose that in both cases their action has no corrupting effect on an institutional process or other person. Now suppose that in the first case the bribe-giver's action of offering the bribe weakens his disposition not to offer bribes; so the offer has a corrupting effect on his character. However, suppose that in the case of the second bribe-giver, his failed attempt to bribe generates in him a feeling of shame and a disposition not to offer bribes. So his action has no corrupting effect, either on himself or externally on an institutional process or other person. In both cases, the action is the expression of a partially corrupt moral character. However, in the first, but not the second case the bribe-giver's action is corrupt by virtue of having a corrupt effect on himself.

Consider the case of a citizen and voter who holds no public office but who, nevertheless, breaks into his local electoral office and falsifies the electoral role in order to assist his favoured candidate to get elected. This is an act of corruption; specifically, it is corruption of the electoral process. However, it involves no public office holder, either as corruptor or as corrupted. By contrast, consider a fundamentalist Muslim from Saudi Arabia who is opposed to democracy and who breaks into an electoral office in an impoverished African state and falsifies the electoral roll in order to facilitate the election of an extremist right wing candidate who is likely, if elected, to polarise the already deeply divided community and thereby undermine the fledgling democracy. Let us further assume that the fundamentalist does so without the knowledge of the candidate, or indeed of anyone else. We are disinclined to view this as a case of corruption for two reasons: Firstly, the offender is not an occupant of a relevant institutional role; he is not a citizen or even a resident of the state in question. Secondly, while the offender undermined a legitimate institutional process, viz. the electoral process, he did not corrupt or undermine the character of the occupant of an institutional role.

Accordingly, we can conclude that acts of institutional corruption necessarily involve a corruptor who performs the corrupt action qua occupant of an institutional role and/or someone who is corrupted qua occupant of an institutional role.

This enables us to distinguish not only acts of corruption from acts of corrosion, but also from moral offences that undermine institutional processes and purposes but are, nevertheless, not acts of corruption. The latter are not acts of corruption because no person in their capacity as institutional role occupant either performs an act of corruption or suffers a diminution in their character. There are many legal and moral offences in this latter category. Consider individuals not employed by, or otherwise institutionally connected to, a large corporation who steal from or defraud the corporation. These offences may undermine the institutional processes and purposes of the corporation, but given the non-involvement of any officer, manager or employee of the corporation, these acts are not acts of corruption.

Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by private persons or corporations not directly involved with the government. An illegal act by an officeholder constitutes political corruption only if the act is directly related to their official duties. 

 

IMPACT OF CORRUPTION ON DEVELOPMENT

Corruption poses a serious development challenge. 

POLITICAL

In the political realm, it undermines democracy and good governance by flouting or even subverting formal processes. Corruption in elections and in legislative bodies reduces accountability and distorts representation in policymaking; corruption in public administration results in the inefficient provision of services. More generally, corruption erodes the institutional capacity of government as procedures are disregarded, resources are siphoned off, and public offices are bought and sold. At the same time, corruption undermines the legitimacy of government and such democratic values as trust and tolerance.

JUDICIAL

Corruption in the judiciary compromises the rule of law and could endanger the polity. In election petitions, the electoral will of the people is subverted and distorted while installed public office holders without electoral legitimacy often govern with impunity as no contract so to say exists between them and the people they govern thereby turning them into an army of occupation.

A corrupt judiciary is the worst affliction any society could be cursed with.

ECONOMIC

Corruption undermines economic development by generating considerable distortions and inefficiency. In the private sector, corruption increases the cost of business through the price of illicit payments themselves, kickbacks, inflation of contracts, the management cost of negotiating with officials, and the risk of breached agreements or detection etc. Although some claim corruption reduces costs by cutting red tape, the availability of bribes can also induce officials to contrive new rules and delays. Openly removing costly and lengthy regulations are better than covertly allowing them to be bypassed by using bribes. Where corruption inflates the cost of business, it also distorts the playing field, shielding firms with connections from competition and thereby sustaining inefficient firms.

Corruption also generates economic distortions in the public sector by diverting public investment into capital projects where bribes and kickbacks are more plentiful. Officials may increase the technical complexity of public sector projects to conceal or pave way for such dealings, thus further distorting investment. Corruption also lowers compliance with construction, environmental, or other regulations, reduces the quality of government services and infrastructure, and increases budgetary pressures on government.

Economists argue that one of the factors behind the differing economic development in Africa and Asia is that in the former, corruption has primarily taken the form of rent extraction with the resulting financial capital moved overseas rather invested at home (hence the stereotypical, but often accurate, image of African dictators having Swiss Bank accounts). 

In Nigeria, more than $400 billion has been reportedly stolen from the treasury by Nigeria's leaders between 1960 and 1999. One of the factors for this behavior is political instability, and fear of the unknown by each emerging ruling class who see government positions as opportunities to feather their nests and secure the economic future of their unborn generations. The fear of confiscation by their successors encouraged officials to stash their wealth abroad, out of reach of any future expropriation. 

GRAPHIC COSTS OF CORRUPTION

Further examination of the damaging costs of corruption would reveal more graphic details.

Sometimes in the early 90s as a newly married young man, I lived in a part of Lagos called Agege. My street was untarred and constituted an eyesore, depreciating the value of the properties in the neighborhood. Along with some other residents we went to the Local Government office to complain and make a case for the said street to be tarred. Our visit revealed that in the books of the said local government, the said street had not only be tarred but it had also been resurfaced twice!  

That case, am sure is not isolated. Every road accident resulting from a badly constructed road, every death in a government hospital from unavailability of vital drugs and equipment, every distorted dream taking a child who would have made some beneficial invention into the backwaters of thuggery, hooliganism, area boyism, kidnapping, armed robbery etc can be traced to corruption and would hang by the normal operations of the Divine Laws on the head of our perpetrator rulers.     

NIGERIA AT 50

We have earlier agreed that at the matured age of 50, our nation is yet to begin the rudiments of development.

The consensus is that the nation needs stable power supply to release its economic potentials. The world waits for us to hold a free and fair election for true leaders of our people to emerge. Our banking system needs to emerge from the doldrums of crisis and pivot the development of our economy. Our stock market must transform from its primordial Ponzi state to a proper barometer of our economy. Our educational system must truly develop our young citizens and place them at competitive par with their generation globally.

All these and more we must achieve through our individual citizens and institutions yet none of these we can achieve if the monster of corruption is not tamed.

I posit to say that today corruption stands between our nation and the attainment of its potentials.

WHAT IS TO BE DONE

It was Karl Max who stated that the philosophers have interpreted the world the point is to change it. It is not enough to diagnose the problem as we have done so far. And it is also not enough to say as we are wont to that it is for the government to attend to.  The fate of our country is too important to be left in the hands of the few citizens presently at the helm of affairs of our political structures and the anti corruption organizations.

We must identify the roles to be played by you as a body of patriotic Nigerians resident outside the country.

Your first duty is to show interest in what goes on at home. You must not bask in the comfort of the allure of our various host countries. They made their countries and we have the duty to make ours.

Secondly, the tragedy of our corrupt elements at home as earlier identified is that their loot is always invested in the developed countries where you in the diaspora are largely resident. You must explore the various legitimate options existing in these countries to trace, locate and expose these ill gotten assets to the law enforcements of your host countries where I can assure you sufficient legislations exist to deal with such toxic assets. We must never forget that by taking away the proceeds, you are creating a great dent in the incentive for the crime.

Thirdly, you must form civil society bodies that will link up with similar organizations back home and exchange vital information and of course carry out concerted activities to rid our nation of this malaise and its perpetrators.

Fourthly, you must assist our legislature back home and the various anti corruption agencies in formulating and fine tuning the various appropriate legislations consistent with global best practice to aid the combat.

Fifthly, you must not fight shy of participating in politics back home and ensuring that only politicians of the right tendency ready to serve altruistically are elected to serve and where possible offer yourselves for such service.

Sixthly, you must join the call for a reform of the pension payment system such that elderly individuals who have served diligently and retired from public service without blemish are not made to appear as fools who failed to steal while in service and that their plight would not be a reminder to those still in service to steal now while the opportunity beckons! 

Finally, you must never forget that you are the best ambassadors of our great country, Nigeria and this you must reflect in all your activities.

Long live the Federal Republic of Nigeria, Long live the alumni of St Charles Grammar School, Osogbo. May the Lord in His infinite Mercy bless us all. Amen.