By Abbia Udofia
On 16 May, the Chairman of the Independent Corrupt Practices and Other Related Offences Commission Barrister Ekpo Nta hosted members of the Council for the Regulation of Engineering in Nigeria (COREN) at the Commission’s Head Office in Abuja. While discussing infiltration of quacks into the profession and even some members who engage in professional misconduct and scandalous acts, the Chairman made a distinction between corruption and stealing which depending on the circumstance of the case, may mean same or entirely different things.
The statement however has over the week generated lots of reactions ranging from frivolous outburst to asinine attacks which of course demand the necessity of a rejoinder. A lawyer’s appraisal of a word is likely to be different from the way a laymanwould understand it. The head of an anti-corruption agency from the perspective of the agency’s establishment and vesting statute, the petitions investigated, the judicial decisions arising from the cases and even international conventions on the concept, will be inclined to define and explain a concept differently. Rightly however, criminal law practitioners and prosecutors appreciate the connotation or distinction made by the speaker and have not participated in the attacks.
I will return to the distinction between corruption and stealing presently. But a few words on the mystery of being quoted out of context. The incident clearly shows how words that appear literally and naturally plain and meaning something else in a legal or professional context may be quoted robustly and vigorously against the intended meaning ascribed to it by the speaker. This comes from contextomy- a logical fallacy and a form of incorrect ascription in which a passage is defoliated of its surrounding circumstances in a manner that alter ssense and anticipated connotation (Engel, 1999 pp.106-107)). Ordinarily contextomies are calculated and deliberate but may also be fortuitous or inadvertent as when someone misinterprets the import of a statement and omits something critical to clarifying or explaining it, possibly believing the omitted part is unnecessary.
The man of straw fallacy argument quotes a speaker out of context simply to misrepresent their stand. On the other hand the appeal to authority fallacy argument quotes an authority on the subject out of context to make it appear the authority supports a particular position. A statement may be quoted out of context without the intention to misinform or mislead albeit without seeing or recognizing the insinuation or negative suggestion advanced from quoting what is seen as the significant segment of the statement.
Corruption is a hated word but is a nebulous and amorphous amalgam of several infractions and contusions. To say someone is corrupt is to say nothing in the strict sense. The inappropriateness of the statement could be shown with the question – corrupt of what? Is it judicial corruption, official corruption, theft, extortion, bribery etc? For a prosecutor, corruption must be defined in terms of the particular or specific infraction complained of. Nobody can be arrested and convicted for ‘corruption’ until the purported corrupt act is defined e.g. embezzlement, misappropriation, bribery, fraud, extortion, obtaining property by trick, false pretences.
Barrister Nta is a lawyer, prosecutor and Head of an anti-corruption agency. Could he be perceived, in all fairness, to say that corruption or stealing is not a crime? Could he by any stretch of imagination be perceived to say that stealing is permissible under any law of Nigeria or Nigerians should be corrupt or steal under any pretext? The answers clearly are in the negative. One must not lose sight of certain important factors in that connection.The general misconception placed on his statement could not be the intended meaning considering his office and oath, the Commission’s statutory functions and his daily assignments as a head of an anti-corruption agency. If for instance the Head of the Fire Service says ‘Smoke is not fire’. Obviously that quote should be understood in the context of the statement and the surrounding circumstances and professional exigencies. The natural meaning of the quote will be absurd to the highest degree of its import.
Let’s take a look at corruption and stealing. Corruption means different things to various people and professionals depending on the situation(Penny2002; Ruzindama, 1998). However, official corruption is defined by L.B Curson’ Dictionary of Law 5th Edition as “an inducement by means of improper consideration to violate some duty”. Black’s Law Dictionary defines it as a “public officer’s corrupt violation of assigned duties by malfeasance, misfeasance or nonfeasance”.Section 2 of the Corrupt Practices and other Related Offences Act, 2000 defines corruption to ‘include bribery, fraud and other related offences.’ It should be noted that the Act in appreciating the nebulous concept of corruption did not define corruption but listed bribery, fraud and then the generic description “other related offences”. Sections 8-26 of the Act list out specific offences of corruption – bribery, conferring a corrupt advantage, inflation of contract prices, making false statement, claims or returns, conspiracy, fraudulent acquisition of property, etc.
On the other hand stealing and theft are expressly defined in the Criminal Code Act Cap77 Laws of the Federation 1990 and the Penal Code Cap 89 LFN 1990. The laws specifically provide for offences related to official corruption; sections 98, 99, 101, 103, 104 of the Criminal Code and sections 115, 119,120,121, 122, 131 of the Penal Code expressly provide for offences ranging from abuse of office, to bribery/gratification etc. Reacting to the provisions of statutes, some judicial decisions have made distinctions between theft, bribery and official or judicial corruption ensuring that the official is charged appropriately under the applicable law for the particular offence.
On the
difficulty of having a precise definition of fraud for instance, the California
Court of Appeal in Charles Wells vs Frank Zenz 526 P. 484 (Cal. App. 1927) per
Campbell J., said: “Fraud is a generic term which embraces all the multifarious
means which human ingenuity can devise and are resorted to by one individual to
get an advantage over another. No
definite and invariable rule can be laid down as a general proposition defining
fraud, as it includes all surprise, trick, cunning, dissembling, and unfair
ways by which another is deceived” (My emphasis).
Considering international
practices, the distinction between stealing/theft and corruption is recognised
even though the overlap between them is also acknowledged. The United Nations
Office on Drugs and Crime Anti-Corruption Toolkit (2004, p.13) in an attempt at
distinguishing corruption from stealing says: “In the context of corruption, embezzlement, theft and fraud all involve
taking or conversion of money, property or valuable items by an individual who
is not entitled to them, but, by virtue of his or her position or
employment, has access to them…… as with bribery and other forms of
corruption many domestic and international legal definitions are intended to
form the basis of criminal offences. Thus, they include only those situations
involving a public official or where the public interest is crucially affected. Theft,
per se, goes far beyond the scope of corruption, including taking of any
property by a person with no right to it…. An ordinary bystander who
steals aid packages from a truck is committing theft but not corruption.
That is why “embezzlement”, which is essentially the theft of property by
someone to whom it is entrusted, is commonly used in corruption cases. In some
legal definitions “theft” is limited to taking of tangible items” (My
emphasis please).
An ordinary charge of corruption as said earlier is vague and imprecise. The charge must state the specific act of corruption – bribery, extortion, fraud, embezzlement, inflation of contract prices, diversion of goods paid for, paying and receiving salaries or benefits of non-existent workers or pensioners, etc. Otherwise the charge will be dismissed for not disclosing an offence. The Supreme Court in a number of cases has clarified the distinction between nebulous allegations and precise offences with specified penalties.
In Aoko vs Fagbemi the accused was charged with and convicted for adultery by a customary court allegedly for “living with another man without judicial separation”. The conviction was quashed on appeal because the alleged offence was not defined and penalized by the criminal code. Note that under the Penal Code applicable in the North sections 378-388 punish such acts. Same decision was made in Udoku vs Onigha (1963) 2 All NLR 107, where the accused was said to “invoke and bind another person with juju”. In Att Gen v Isong (1986) 1QLRN 75, the defendant was tried for possession of fire arms and possession of ammunitions contrary to sections 3 and 9 of the Fire Arms Act 1966. The Supreme Court however held that the defendant could not be convicted of the said offences because the cited sections did not specify any punishment for the alleged offence.
It is suggested that the denotation conveyed by the public to the ICPC Chairman’s statement, gives no sensible effect to the words quoted. It seems to me as all prosecutors and criminal law practitioners, that the words from the above analysis emphasize the distinction of the words in their application by lawyers or prosecutors. The difficulty with interpreting words with varied imports arise from the multiple construction which each individual may place on the word or expression just like the corruption and stealing discussion arising from the common ground or belief. It is only by construing the words in the context, the statutes and their prosecutorial application could the intention of the speaker be understood or appreciated.
When statements are made by a speaker possibly an authority on a subject as in (the case under discussion), at a forum and possibly before certain professionals or expert group, and the statement naturally does not appear reasonable in the context conveyed, it is safe for the press to ask for clarity in the light of the divergence between the natural and technical or professional meaning of the words. From the foregoing therefore, there is force in the popular submission that corruption means stealing; however they may mean different things in law and in prosecutorial phrasing as Mr Nta attempted to explain.
References:
Engel, M. (1994). With Good Reason: An
Introduction to Formal Fallacies. pp
Penny, J. (2002). Corporate Fraud: Prevention
and Detection n, London, Tolley.
Ruzindama, A. (1998) Corruption and
Development in Annual World Bank Conference on Development Economics 1997,
Pleskovich B. & Stiglitz J.E. ed.Washington DC: World Bank
UNODC (2004) Global Programme against
Corruption Anti-Corruption Tool Kit (3rd Ed). UN: Vienna.
