Bribe and bribery

There have been various definitions of the term bribery and various approaches to conceptualizing what is wrong with bribery.Footnote ⁵ The definition of bribery in this article is an adaptation from the UK Bribery Act 2010 (UK Act). The definition of bribery under the UK Act is preferred to the definition of bribery under Nigeria's anti-bribery laws, such as the Criminal CodeFootnote ⁶ (Criminal Code) and the Corrupt Practices and Other Related Offences Act 2000 (ICPC Act), because it is simple and clearly articulates what is wrong with bribery.Footnote ⁷

Bribery is constituted (the supply side) when a person offers, promises or gives a financial or other advantage to another person with the intention of inducing that other person to perform improperly a relevant function or activity or to reward a person for the improper performance of that function or activity.Footnote ⁸ Bribery is also constituted (demand side) when a person requests, agrees to receive or accepts a financial or other advantage from another person intending that, in consequence, a relevant function or activity should be performed improperly or where the request, agreement or acceptance itself constitutes the improper performance by the recipient of a relevant function or activity.Footnote ⁹

The conferral of advantage and the improper conduct symptomatic of bribery must be associated with a relevant function or activity. A function is a relevant function or activity if it falls within: any function of a public nature; any activity connected with a business; any activity performed in the course of a person's employment; or any activity performed by or on behalf of a body of persons (whether corporate or unincorporated).Footnote ¹⁰ What is wrong with bribery is that the offer, conferral, request or acceptance of the financial or other advantage is intended to induce the other person to perform a relevant function or activity in breach of the expectation to act impartially, in good faith or in a manner that amounts to a betrayal of trust.Footnote ¹¹ The test of the expectation should be what a reasonable person would expect in relation to the performance of the type of function or activity concerned.Footnote ¹² In other words, where a reasonable man would expect that, in the performance of the relevant function, the acceptance of a financial or other advantage would be seen as an inducement to breach a duty of impartiality or good faith, or as a betrayal of trust, the offence of bribery would have been committed.

Having regard to this explanation of what constitutes bribery, a bribe is the financial or other advantage offered, promised, given, requested or accepted for any of the purposes identified.

Gifts

A gift is defined as “something given, a present, the art or process of giving”.Footnote ¹³ A gift may include money, a donation, valuable security, property or an interest in property, or any other advantage given by one person to another.

The “pure” or “free” gift

Sociologists have offered definitions or conceptions of “gift” that explain the social significance of gifts. However they have been unable to agree on the nature and meaning of gifts. This is because societal and individual needs and desires have generated an entire family of gift-like practices, giving rise in turn to a variety of understandings of gifts and enabling disagreement about the items to be included in the category and about their moral dimensions.Footnote ¹⁴

Gifts have been defined to include “something given voluntarily without payment in return, as to show favor toward someone, honor an occasion or make a gesture of assistance”.Footnote ¹⁵ One important aspect of this definition which is worth stressing is that the thing is voluntarily and freely given without any form of coercion or inducement. This definition is close to the popular view of the meaning of gifts as “a no-string-boon which ceases to be gift if either party attaches to it any sort of obligation”.Footnote ¹⁶ It is this conception of gift that Malinowski describes as a “pure gift”, that is “an offering for which nothing is given in return”Footnote ¹⁷ or by extension that nothing is expected to be given in return. Malinowski examined different kinds of gifts and payment practices amongst the Trobriands of the western PacificFootnote ¹⁸ and identified the existence of pure gifts. While admitting that pure gifts are rare amongst the Trobriands, he nevertheless noted the existence of pure gifts in which “an individual gives an object or renders a service without expecting or getting a return”.Footnote ¹⁹ He gave as examples of free gifts the relations between husband and wife and parents and children.Footnote ²⁰ He emphasized however that the gifts in the Trobriands are conceived as definite acts with a social meaning, rather than the transmission of objects, with the result that, where social duties do not directly impose them, gifts are very rare.Footnote ²¹

The idea of a pure or free gift has received some support. Laidlaw cited the practice of the followers of Jainisim in India (a religious group) to illustrate a gift practice that comes “close to being a truly free gift”.Footnote ²² According to him, the Jain renouncers devote their lives to spiritual purification and rely on alms from lay families for food. Their practice of giving and receiving food is guided by strict rules designed to ensure that no reciprocity is established between the parties. The renouncers do not follow any particular route in their day to day wanderings to gather food. Like grazing cattle, they wander unpredictably and turn up unexpectedly. They also take so little food from different households that the donors will hardly notice the loss. They offer no thanks and make no positive comments about the food. The food collected is taken back to the rest-house and mixed with that brought by other members of the group into a single mass and then eaten out of public view. After analysing the gift practice of the Jains, Laidlaw concludes that it is a free gift, a “voluntary expression of positive sentiments … which creates no debt obligation, indeed no social relation at all between giver and recipient”.Footnote ²³

The idea of a “pure” or “free gift” has however come under increasing attack by anthropologists like Malinowski who initially supported the existence of a pure gift. Malinowski admitted that he made a mistake concerning his views about pure giftsFootnote ²⁴ following the criticism of the idea of a pure gift by Marcel Mauss in his seminal work The Gift.Footnote ²⁵ Mauss rejected as untenable the classification by Malinowski of gifts between spouses as pure gifts, stressing that the gifts are most often counter gifts.Footnote ²⁶ Malinowski admitted that his description of a pure gift was a mistake.Footnote ²⁷ It is to Mauss the world owes the debt of an original and thorough analysis of the concept of a gift imposing a reciprocal obligation. Mauss's task was to study the forms of exchange in society “which surrounds us and those which immediately preceded ours”Footnote ²⁸ with the twin objectives of drawing conclusions on the nature of human transactions in different societies and on some contemporary problems. He chose for his study the areas of Polynesia, Melanesia and north-west America. What follows is a description of the mode of exchange in these areas, as described by Mauss.

Mauss's reciprocal gift

Mauss described a system of contract and exchanges of goods (the Exchange System) made by means of gifts which in theory are voluntary but in effect are given and repaid under obligation.Footnote ²⁹ In the Exchange System, there were no markets where individuals exchange goods. Exchange was conducted by groups which make exchanges and contracts, and are bound by obligations. The Exchange System was carried out through a “potlatch”. A potlatch is a gift-giving festival and primary economic system practised by indigenous peoples of the Pacific north-west coast of Canada and the United States.Footnote ³⁰ The ceremonial exchanges do not involve exclusively goods, wealth, real or personal property. They also involve the exchange of courtesies, entertainments, ritual, military assistance, women, children, dances, feast and fairs, in which the market is but one element and the circulation of wealth is one part of a wide and enduring contract. While these gifts take place under a voluntary guise, they are in essence strictly obligatory; their sanction is private or open warfare. The main principle emphasized in the mode of exchange observed by Mauss is the obligatory return of a gift for a gift received.Footnote ³¹

Mauss proceeded to underscore the underlying basis of the reciprocal obligations imposed by a gift.Footnote ³² The reciprocal obligations attached to giving and receiving according to him are predicated on the “spirit of things”.Footnote ³³ The object given is not just a thing, but is possessed of a spirit which follows the object to whoever received it and compels a return to the giver. Where the object is given by the original giver to another person, who in turn gives it to a third person, the third person is obliged to give back to the person who gave to him, who in turn is obliged to give back to the original giver. The underlying basis of reciprocal obligations attached to a gift, Mauss explains, is not just the giving away of objects but the creation of a social bond between persons. The giver gives away what is in “reality a part of one's nature and substance, while to receive something is to receive a part of someone's spiritual essence”.Footnote ³⁴ The system of exchange carries with it not only the obligation to give presents, but also the obligation to receive them. Mauss's work The Gift has received rave reviews in anthropology and sociology. It has “acquired for anthropology many of the qualities of a scared text”Footnote ³⁵ and is “widely recognised as a major event in the history of anthropological theory and indeed of sociological thought”.Footnote ³⁶

A blend of pure and reciprocal gifts?

It is not difficult to see why a definition of a gift as a thing given, without encompassing the value of a gift as a tool for maintaining friendship and creating a social bond is not of much help. Human beings have motives and reasons for their actions and therefore a perception of a gift as merely a thing given can be said to be out of touch with social reality. On the one hand, the notion of a pure and free gift without any strings attached, while fanciful and idealistic, exists in some circumstances, as Laidlaw demonstrated with respect to the practices involving Jain renouncers in India.Footnote ³⁷ The case of anonymous donors also grounds the idea of a pure or free gift with no strings attached. Hospitality offered to strangers falls within this category as well. The possibility of the stranger reciprocating is indeed remote.

In the cases where a pure gift can be demonstrated to exist because there are no strings attached, a concept of “gift” conceived purely in terms of reciprocal relations, where the giver makes a gift in the expectation of return, appears too narrow. It is however undeniable that, because of the social bonds created by a gift, the expectation to reciprocate in terms of making a return gift or rendering a service in return forms part of the general gift-giving practices in many societies, including Nigeria. It appears that a combination of the pure gift and reciprocal gifts approach to the notion of a gift will provide a concept of gifts wide enough to cover different gift-giving practices.

Culture of gift giving

Gift-giving has been described as an intriguing, universal behaviour that has yet to be satisfactorily interpreted by social scientists.Footnote ³⁸ Until more in-depth studies of gift-giving practices are undertaken, any descriptions and conclusions reached can only be tentative. While some of the literature suggests a relationship between culture, gift-giving practices and bribery in Nigeria,Footnote ³⁹ there are opposing views.Footnote ⁴⁰ It is not important to pronounce on the validity or otherwise of the competing views. What is important in the author's view is to strengthen the argument in favour of criminalizing bribery by drawing attention to the cultural practices of some ethnic groups in Nigeria which support the practice of gift-giving but also frown at bribery.

Gift-giving is practised by many ethnic groups in Nigeria. Gift exchanges usually occur at ceremonial occasions such as weddings, naming ceremonies and the celebration of traditional festivals.Footnote ⁴¹ Subjects offer gifts to their natural rulers and paramount rulers especially in commemoration of important festivals such as the new Yam Festival,Footnote ⁴² Egungun festivalFootnote ⁴³ or when honorary titles are given.Footnote ⁴⁴ The norm of reciprocity as the basis of gift exchange, observed by Mauss among the people of Polynesia, Melanesia and north-west America, is also present in gift exchange in pre-colonial Africa. July observed that the exchange of gifts is usually made with the understanding that each offered the gift in order that he might receive something in like manner.Footnote ⁴⁵ The existence of a gift-giving culture founded on the norm of reciprocity is however not sufficient to associate cultural gift- giving practices with bribery. The ancient custom of gift-givingFootnote ⁴⁶ and the norm of reciprocity associated with it have been found to occur in all societies (with some variations across cultures).Footnote ⁴⁷

On the contrary, there is evidence to suggest that some distinction exists between gift-giving practices and bribery, and that bribery was perceived as negative social conduct in pre-colonial Nigeria. It is recognized that not all gift-giving should constitute corruptionFootnote ⁴⁸ (bribery) and indeed that traditional gift-giving can be distinguished from a bribe of money.Footnote ⁴⁹ Perhaps the clearest evidence of cultural understanding of the wrong in bribery can be found in the proverbs expressing moral condemnation of bribery. Proverbs give a penetrating picture of a people's way of life, their philosophy, their criticism of life, moral truths and social values.Footnote ⁵⁰ For an African, what is not in a proverb is not real. Proverbs express reality.Footnote ⁵¹ Some examples of Yoruba and IgboFootnote ⁵² proverbs provide a good illustration of the aversion to bribery in Nigeria.

The Yoruba proverb Enu ki i je ki oju ma ti [mouth cannot eat and face not ashamed] is used to explain that, once someone takes a benefit or bribe, the job must be accomplished no matter the difficulties.Footnote ⁵³ Another Yoruba proverb Agba ti enu e ba gba dodo ko ni gba ododo [the elder whose mouth has accepted fried plantain cannot accept the truth] is used to explain that, once one has accepted a bribe in any form, one cannot do that which is right.Footnote ⁵⁴ An example of an Igbo proverb expressing aversion to inducement is O buru na ikpe ma eziokwu mara na akaazu di ya [whenever the truth is subdued, then there must be a clear case of inducement].Footnote ⁵⁵

It is interesting to note that there are also proverbs expressing the norm of reciprocity. Two examples of such Yoruba proverbs are: Eni ba da omi siwaju a te ile tutu [one who pours water in front shall surely step on wet ground]Footnote ⁵⁶ which is used to show that one good turn deserves another; and Owo omode ko to pepe, ti agbalagba ko wo keregbe, ise agba ba be ewe ki o ma se ko; gbogbo wa l'a ni ohun ti a n se fun ara wa [the child's hand cannot reach the high shelf, that of the elder cannot enter the gourd; the errand which an elder sends the child, let him not refuse it; all of us have what we do to help each other]Footnote ⁵⁷ which is used to show that everyone, everything and every situation has its limitations and we all live to help each other.

The example of proverbs expressing the universal norm of reciprocity does not necessarily in the writer's view establish that gift-giving cultural practices and bribery are closely related. The existence of the universal norm of reciprocity has not been necessarily associated with bribery in other climes. In addition to proverbs, the use of derogatory words to describe acts amounting to bribery also conveys disapproval of bribery in indigenous languages. The Yorubas use the word egunje [an involuntary or cursed gift extorted from the giver by a rapacious official] to express disapproval for bribery. Similarly the Hausas of northern Nigeria express disapproval for bribery by using derogative imageries such as hanci [eating of nose] or tsoshiyar baki [plugging of mouth] to distinguish involuntary gifts or bribes from other forms of gift.Footnote ⁵⁸

An examination of religious beliefs about gift-giving and bribery provides further evidence that cultural gift-giving practices do not prove that ethnic groups in Nigeria support or encourage bribery.

Religious traditions on gifts and bribery

Christianity and Islam appear to be the two principal religions in Nigeria.Footnote ⁵⁹ Examination of the teachings of these two religions reveals support for gift-giving practices and an aversion to bribery.

Contemporary gift-giving practices

There are many contemporary gift-giving practices in Nigeria. Traditional gift-giving practices are usually associated with ceremonial occasions such as weddings, naming ceremonies and the celebration of traditional festivals.Footnote ⁸⁴ Contemporary gift-giving practices include gifts given to acknowledge birthdays, accomplishments and on special occasions, such as burial ceremonies or the conferment of a chieftaincy title or as a demonstration of love and affection.Footnote ⁸⁵ The most obvious gift-giving practices in Nigeria are the gifts given during religious holidays such as Christmas, and Islamic festivals like the Eid ul Fitr and Eid ul Kabir celebrations.

According to Millar, the Christmas season is the most obvious example of a gift-giving tradition where the obligation to reciprocate is most apparent.Footnote ⁸⁶ The exchange of presents at Christmas has been described as a “gigantic potlatch, which implicates millions of individuals, and at the end of which many families' budgets are confronted by lasting disequilibrium”.Footnote ⁸⁷ It is undeniable that every recipient of a gift at Christmas feels a sense of obligation to reciprocate by making a return gift. Gift giving at Christmas (and at other religious festivals) has become a symbolic gesture, recognizing and reinforcing the nuances of the relationship between the giver and the receiver.Footnote ⁸⁸ The exchange forms mutual respect, encourages reciprocity and entails moral obligations.Footnote ⁸⁹ Exchange is a very powerful way in which people establish bonds and connections.Footnote ⁹⁰

While it appears generally accepted that a Christmas gift imposes a reciprocal obligation to make a return, Moschetti has argued that patterns of gift exchange at Christmas within collectivities are of two general forms: asymmetric and symmetric.Footnote ⁹¹ Two of the three illustrations given by Moschetti will suffice to support his argument. In asymmetric gift exchange one receives more than is given (or vice versa), while in symmetric exchange one receives an equal gift in return.Footnote ⁹² He gave as an example of asymmetric gift exchange, gift exchanges within the nuclear and extended family, with children receiving more than they give. The asymmetric pattern is also noticed in gifts by adults to abandoned children, children of the poor and the poor in general.Footnote ⁹³ While gift exchanges between neighbours may vary in frequency and intensity, the general pattern is that they are symmetric.Footnote ⁹⁴ Moschetti's analysis provides a useful insight into the dynamics of Christmas gifts generally. It is however important to note that, according to his definition of what qualifies as an asymmetric gift exchange, some of his examples of asymmetric gifts do not involve giving anything in return. The gift to abandoned children in his example does not involve receiving more than is given, as abandoned children are surely not in a position to give anything in return. The idea of “an equal gift in return” for a first gift in his thesis is also not free from difficulties. What parameters should be used to determine whether a return gift is “equal” to the first gift? From whose perspective is the equality determined, from the perspective of the giver or the perspective of the receiver? If equality is determined from the perspective of the receiver, is the perspective of the giver not important? These are problematic issues with Moschetti's analysis of asymmetric and symmetric gift exchange.

The problem with contemporary gift-giving practices is however not whether they result in an asymmetric or symmetric gift exchange. The real problem lies with the idea of reciprocity and obligation inherent in contemporary gift-giving practices or customs. As Millar argued, it may be difficult to break free of the circle of obligation once it has been initiated for the first time.Footnote ⁹⁵ The issue is to distinguish between permissible gift-giving and bribery. The problem is compounded by the fact that gift-giving connotes reciprocity and obligation. From analysis by sociologists and the social reality of gift-giving, the obligation to reciprocate a gift by making a return gift in kind or in another manner forms an essential part of the human reaction to gift-giving. Perhaps the only way to avoid any assumption of the obligation to reciprocate implicitly or overtly is not to accept a gift in the first place. The author submits that the boundary between acceptable gift-giving and bribery is crossed whenever a gift induces or is intended to induce any of the wrong identified in bribery: ie to induce the recipient to breach a duty of impartiality or good faith or to betray trust in an official relationship.

Gift-giving and the constitution

The Constitution of the Federal Republic of Nigeria of 1999 (the 1999 Constitution) identified the need to address the problem of corruption by imposing an obligation on the state to abolish corrupt practices and abuse of power.Footnote ⁹⁶ The Supreme Court held in AG of Ondo State v AG of the Federation and Others Footnote ⁹⁷ that the word “state” as used in chapter 2 of the 1999 Constitution includes federal, state and local governments. The Supreme Court upheld the constitutional validity of the Corrupt Practices and Other Related Offences Act 2000 (ICPC Act).

Furthermore, the Code of Conduct for Public OfficersFootnote ⁹⁸ (the Code) prohibits a public officer from asking for or accepting property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties.Footnote ⁹⁹ The Code also creates a presumption of breach where a public officer receives any gift or benefit from commercial firms, business enterprises or persons who have contracts with the government, unless the contrary is proved. These provisions are however subject to the exception allowing a public officer to “accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom”.Footnote ¹⁰⁰ There is also an additional proviso that any gift or donation to any public officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the public officer and, accordingly, the mere acceptance or receipt of any such gift shall not be treated as a contravention of the Code. This provision is meant to clarify that gifts received during official ceremonies are gifts to the office and not personal gifts to the public officer. Former American President Bill Clinton and his wife had to return some items to the White House after leaving office when the issue of whether the items were gifts to the White House or to the Clintons arose.Footnote ¹⁰¹

There is a need to examine closely the exception allowing a public officer to “accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom”.Footnote ¹⁰² What does the requirement that the gifts must be presented on such occasions as are recognized by custom mean?

The word “custom” is not defined in the definition section of either the Code or the 1999 Constitution. Custom is defined as “a traditional activity or practice … the body of established practices of a community”.Footnote ¹⁰³ A question that follows naturally is how to ascertain the existence of a custom. This is relevant because, if customs are dynamic and “a mirror of accepted usage”, as was recognized in Owonyin v Omotosoho,Footnote ¹⁰⁴ the question of mode of ascertainment becomes critical. In the absence of clear provisions as to how the existence of a custom is to be ascertained for the purpose of the provisions of the Code, it appears that the rules of evidence imposing a burden of proof on a person asserting the affirmative would apply.Footnote ¹⁰⁵ Akinseye-George asks another pertinent question: “which custom? Is it that of the giver of the gift or that of the recipient?”Footnote ¹⁰⁶ The Code does not provide any clarification. The author agrees with the view that this kind of vague provision is capable of rendering the Code ineffective.Footnote ¹⁰⁷

The provision appears to offer an important loophole in the quest to address the problem of bribery in Nigeria. While bribery involving public officials is not limited to relatives and friends of the public officer, it is undeniable that, having regard to traditional ties in Nigeria and indeed other African countries, the group of people most likely to be involved in bribing public officials are their friends and relatives. The provision appears to exempt gifts from friends and relatives, provided that they are given on such occasions as are recognized by custom. This provision provides a window for bribe givers to present their gifts to public officers even where their real intention is to obligate the public officer to grant them special favours in the discharge of official duties. The author agrees with the view that the provisions allow a public officer to sidetrack the law by accepting gifts and benefits in the guise that they are permitted by custom.Footnote ¹⁰⁸ This is further compounded by the fact that, in Nigeria, the list of persons who qualify as friends and relatives is endless, with the possibility that a wide range of persons will qualify as friends and relations. In a country where corruption involves mainly bribery and the embezzlement of public funds,Footnote ¹⁰⁹ this kind of exception and ambiguity can only weaken the quest to address the problem of bribery.

Another issue raised by the exception relating to gifts from relatives and friends is whether the exception applies to situations where friends and relations have pending official matters before a public officer empowered to exercise discretion with respect to such matters. It appears that the exception will cover that situation, essentially removing such transactions from the purview of the legal restriction against the receipt of gifts by a public officer in the course of their employment. It is the author's view that it would be preferable for the exception to be inapplicable where there is a pending official matter in which the friend or relation is interested before the public official.

Another problem arising from provisions of the Code on the receipt of gifts is that the provisions are restricted to gifts received by public officers. While the focus of the Code on public officers reflects the historical concern of anti-corruption laws with public officers, the perception of bribery is widening to include non-public sector participants.Footnote ¹¹⁰ The author has argued that the harm in bribery is constituted whether the offence involves public sector or private sector employees. There is therefore no basis for the continued retention of the public / private sector distinction in relation to offences of bribery.Footnote ¹¹¹ Where an employee of a private sector entity receives a gift from a third party in the course of the discharge of his official duties in circumstances where the gift can be construed as an inducement to breach a duty of impartiality or good faith or to betray trust owed to the employers, the wrong of bribery would have been established. There is therefore the need to reassess not only the exception to the restriction on the receipt of gifts but also the focus of the Code on public officers. While the duty to declare assets can focus only on public officers, the duty not to receive gifts should not be restricted to public officers, as that would give the impression that private sector employees are free to receive all forms of gifts without restriction.

Gift-giving and anti-bribery statutesFootnote ¹¹²

Under the Criminal Code the benefit subject matter of the offence of bribery is “any property or benefit of any kind”.Footnote ¹¹³ The provisions of the ICPC Act use identical terms (“any property or benefit of any kind”),Footnote ¹¹⁴ except that they also use the word “gratification” in the head note for the offence created by section 8. The word “gratification” does not however appear on the head note for other bribery offences under the ICPC Act. The word “gratification” is defined in section 2 of the act to mean among others “money, donation, gift, loan, fee reward”. From these provisions it appears clear that the statutes cover a gift howsoever described. The definitions of bribery under the Criminal Code and the ICPC Act clearly cover customary gifts. The legislature puts the issue beyond controversy by providing in section 60 of the ICPC Act that, in any proceedings under the act, evidence shall not be admissible to show that any gratification mentioned in the act is customary in any trade, vocation or calling or on a social occasion. This provision does not provide any exception for gifts to public officers on account of custom.

Section 60 of the ICPC Act appears to conflict directly with the provision of paragraph 6(3) of the Code and this raises its constitutionality. The ICPC Act expressly prohibits a custom which the constitution expressly permits. It is submitted that the provisions of section 60 of the ICPC Act are unconstitutional to the extent of their inconsistency with para 6(3) of the Code and therefore null and void.Footnote ¹¹⁵ Paragraph 6(3) of the Code dilutes the objective of the provisions of section 15(5) of the 1999 Constitution which the Supreme Court eloquently espoused in the case AG of Ondo State v AG of the Federation and Others. Footnote ¹¹⁶ The court, particularly in the supporting judgment of Uwaifo JSC,Footnote ¹¹⁷ adopted the purposive approach to constitutional interpretation and upheld the legislative competence of the National Assembly to enact the ICPC Act on the ground that the act was designed to promote the common good of eradicating corruption in Nigeria.Footnote ¹¹⁸ If indeed the constitution is construed to intend the eradication of corruption, it is submitted that the provisions of paragraph 6(3) of the Code dilute that objective. Although the Supreme Court validated the ICPC Act generally,Footnote ¹¹⁹ it is doubtful whether, had the issue had been raised before it, the court would have validated section 60 of the act in view of its clear conflict with paragraph 6(3) of the Code.

Gift-giving with remote possibility of bribery

There are situations in which the possibility of gift-giving constituting bribery is very remote or completely non-existent. Under this category, neither of the parties to the gift exchange is involved or engaged in any official relationship with the other. The gift exchange takes place within the social context of family, friends and acquaintances. In this category of gift exchanges, irrespective of the motive of the parties and the value of the gifts, the transaction is purely social and the law is not concerned with the motive or intention of the parties. In other words it is gift exchange in the private domain. Traditional gift exchanges at occasions such as naming ceremonies, weddings, chieftaincy titles, birthdays and traditional religious festivals fall within this category. These situations do not fall within the wrongs identified in bribery,Footnote ¹²⁰ provided there is no official relationship between the parties.

Gift-giving with strong possibility of bribery

The area where giving and receiving gifts raises serious issues of bribery is where one or both of the parties involved in the gift exchange is a public officer or a person who occupies a position of authority. As noted earlier,Footnote ¹²¹ the legal definition of the benefit involved in a bribery transaction covers a gift. While it is clear that attempts may be made by gift-givers to cloak their real intentions, it is arguable that any gift to a person in an official position or authority is tainted with the likelihood of its being a bribe or perceived as a bribe. This is because it is very difficult for gifts received in such circumstances not to be construed as a bribe. Public officers and persons in authority who receive gifts from persons dealing with them in the course of their duties have an uphill task to convince observers that a gift is not a bribe. Public officers discharge responsibilities that involve the exercise of discretion and impose a duty on them to act impartially in their official duties. Even with the best of intentions, a gift to public officers from persons dealing with them in the course of official transactions cannot escape from the perception that it is a bribe. The position of the public officer is analogous to the rule relating to the likelihood of bias encompassed in section 36(1) of the 1999 Constitution on the right to a fair hearing. The classical formulation of the rule in Metropolitan Properties Company (FGC) Ltd v Lannon and Others is:

There are some similarities between the role of a judge and a person occupying a public office who receives a gift from a person engaging in official transactions with him. First, by virtue of their office, both are servants of the public and are expected to serve the public and not to pursue personal interests which are likely to place them in a position of conflict with their official duties. Secondly, both owe a duty to act impartially and in good faith. Thirdly, it may be difficult to determine if in fact they are influenced in the performance of their duties by the reason of a gift in the case of the public officer or by other circumstances in the case of the judge. The author submits that the provision of the anti-bribery statute which raises the presumption of a corrupt receipt where a public officer receives gifts in the course of his duty, subject to proof to the contrary, is based to some extent on the philosophy underlying the real likelihood of bias test.

Relevance of disclosure

The crime of bribery is usually committed between a willing giver and receiver and is therefore generally committed in private out of public scrutiny. The giver and receiver are usually not interested in disclosing the transaction to the public. The Code and anti-bribery statutes prohibit public officers from receiving gifts on account of official duties. The question of whether the disclosure of the receipt of gifts by a concerned public official has any bearing on liability for breach of the Code or anti-bribery statutes would therefore not arise. The only instance where a duty of disclosure may be construed is from the proviso to paragraph 6(3) of the Code. This provides that any gift or donation to a public officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the public officer. The proviso provides further that the mere acceptance or receipt of any such gift shall not be treated as a contravention of the Code. In the author's view, the rationale for this provision is that any gift received on such an occasion is deemed to have been given to the public institution represented by the public officer and not to him personally. It is submitted that, if the gifts are given to the institution through the public officer, it should be construed from the provision that the public officer is duty-bound to disclose the receipt of the gift. Although the Code fails to specify the liability of a public officer who fails to disclose the receipt of such gifts, it appears that non-disclosure should prima facie constitute a breach of the Code. Furthermore the public officer could be prosecuted for converting the gifts and liable for the offence of stealing under section 383 of the Criminal Code. There is, however, the practical challenge of enforcing this provision. If the officer receives such a gift and keeps possession of it for personal use, it is doubtful whether a junior officer or any officer in charge of taking an asset inventory of the public institution will have the will to request the return of such gifts from a former governor, minister or other high ranking public official.

Status of the conventions under Nigerian law

These conventions generally oblige state parties to take legislative steps to criminalize certain specified conduct. The conventions impose both general and particular obligations on state parties. UNCAC imposes a general obligation on state parties to take necessary measures, including legislative measures, to implement obligations assumed under the convention in accordance with fundamental principles of their domestic law.Footnote ¹²⁶ It also allows freedom of action for state parties to adopt stricter and more severe measures than those provided in the convention.Footnote ¹²⁷ AUCC imposes similar obligations on state parties without subjecting the obligation to the requirements of domestic law. It imposes an obligation to adopt whatever legislative and other measures are required to establish as offences the acts mentioned in article 4 of the convention.Footnote ¹²⁸ UNCAC and AUCC set out the offences that state parties are obliged to create under municipal laws.Footnote ¹²⁹

With respect to the implementation of treatiesFootnote ¹³⁰ in Nigeria, the Constitution of the Federal Republic of Nigeria 1979 (1979 Constitution) adopted the UK approachFootnote ¹³¹ of transforming treaty provisions into Nigerian Law. The 1979 Constitution provides that no treaty between Nigeria and any other country shall have the force of law except to the extent to which the treaty has been enacted into law by the National Assembly.Footnote ¹³² Commenting on similar provisions under previous constitutions, Oyebode noted that in Nigeria it is necessary for a treaty to be transformed into the municipal law before its provisions can be applied domestically.Footnote ¹³³ In Abacha v Fawehinmi Footnote ¹³⁴ the Supreme Court held that a treaty does not become binding in Nigeria until enacted into law by the National Assembly.

The bulk of the statutesFootnote ¹³⁵ criminalizing bribery and corruption in Nigeria were enacted before the adoption of UNCAC and AUCC in 2003. Some of the acts and practices that state parties are required to criminalize under UNCAC and AUCC are already provided for in municipal laws. Consequently, there cannot be, in the strict sense, a transformation of the provisions of the conventions into Nigerian law. Transformation is possible however with respect to the provisions of the conventions which are not yet part of Nigerian law and which may be transformed into Nigerian law by amending relevant municipal laws. As the next section of this article reveals, the main provisions of the conventions on bribery are already part of Nigeria's anti-bribery laws.

Anti-bribery provisions of the conventions

The conventions provide for the criminalization of bribery in the public and private sectors.