Trends and climate
Have there been any recent changes in the enforcement of anti-corruption regulations?
Nigeria has recently witnessed an upsurge in the number of corrupt individuals that have been investigated and prosecuted. However, the country has yet to witness any positive results from the government’s new stance on corruption, as most of the cases currently with the courts tend to be inefficiently prosecuted by the regulatory agency charged with the responsibility.
Are there plans for any changes to the law in this area?
The Whistleblower Protection Bill is currently before the House of Representatives. On enactment, it is hoped that this will improve investigations into allegations of bribery and corruption in Nigeria.
Which authorities are responsible for investigating bribery and corruption in your jurisdiction?
The Economic and Financial Crimes Commission (EFCC) is in charge of investigating bribery and corruption in Nigeria. Some of its notable functions include:
- investigating and prosecuting economic and financial crimes (specifically, the enabling acts set out financial crimes to cover several issues such as bank fraud, tax evasion, capital market fraud and futures market fraud);
- acting as the nationwide coordinator for the Nigeria’s anti-money laundering drive;
- acting as the designated Nigerian Financial Intelligence Unit; and
- implementing the Advance Fee Fraud Act, the Failed Banks Decree, the Money Laundering Act and the Banks and other Financial Institutions Decree.
The Independent Corrupt Practices and other Related Offences Commission also plays a major role in investigating bribery and corruption allegations in Nigeria. Its key functions are:
- investigating reports of corruption – in particular, reports regarding government and public officials;
- investigating government establishments and the public’s susceptibility to corruption; and
- educating and enlightening the public on corruption, with a view to enlisting and fostering public support for its anti-corruption campaign.
Other notable authorities include:
- the Special Fraud Unit and Anti-fraud Section of the Nigeria Police Force, which investigates:
- high-profile local and international fraud cases; and
- cases of bad cheques and fraud-related offences;
- the Public Complaints Commission, which:
- obtains full disclosures of information;
- makes public reports;
- investigates the Nigerian courts’ administrative procedures;
- report crimes, including any erring officer, for disciplinary action; and
- prosecutes offenders; and
- the Code of Conduct Bureau, which was created to:
- establish and maintain a high standard of morality in the conduct of government business;
- ensure that the actions and behaviours of public officers conform to the highest standards of public morality and accountability; and
- receive and investigate complaints and, where appropriate, refer such matters to the Code of Conduct Tribunal.
What are the key legislative and regulatory provisions relating to bribery and corruption in your jurisdiction?
The key legislative and regulatory provisions include the following:
- The Economic and Financial Crimes Commission Establishment Act 2004 establishes the coordinating agency responsible for the prosecution of all economic and financial crimes in Nigeria.
- The Independent Corrupt Practices and Other Related Offences Act 2000 specifically criminalises bribery, as well as attempted corruption, fraud, extortion and money laundering. It also establishes a criminal office and imposes penalties. Its penalties apply to both individuals and companies and may include fines and imprisonment for up to seven years.
- The Advance Fee Fraud and Other Fraud Offences Related Act 2006 provides that it is an offence for anyone – by false pretence and with the intent to defraud – to:
- obtain property from any other person for him or herself or for any other person; or
- induce another person to deliver property to a third party.
- This is true regardless of whether the property was obtained or its delivery was induced through a contract which was made under false pretence.
- The Money Laundering Prohibition Act 2012 prohibits the laundering of the proceeds of a crime or any criminal or illegal activity, and provides for appropriate penalties for money laundering infringements.
- The Miscellaneous Offences Act creates a number of offences with strict penalties in the event of a breach by any individual or corporate entity.
- The Code of Conduct for Public Officers, as contained in the 1999 Constitution, can be found in the Fifth Schedule to the 1999 Constitution of the Federal Republic of Nigeria. It performs oversight functions on the activities of public officers. It also establishes a disciplinary mechanism through the Code of Conduct Tribunal.
- The Nigerian Extractive Industries Transparency Initiative Act ensures, monitors and reviews transparency and accountability in the reporting and financial disclosure of extractive companies.
- The Freedom of Information Act 2011 gives every Nigerian the right to access information within the control of public institutions in Nigeria.
- The Fiscal Responsibility Act 2010 establishes the Fiscal Responsibility Commission, which has the power to:
- compel any person or government institution to disclose information relating to public revenues and expenditure; and
- initiate an investigation into whether any person has violated the act. If the commission is satisfied that the person has committed a punishable offence under the act, it will forward a report of the investigation to the attorney general of the federation.
- The Penal Code (LFN 2004) generally sets out the offences and penalties under criminal law in the northern part of Nigeria.
- The Criminal Code (LFN 2004) generally sets out the offences and penalties under criminal law in the southern part of Nigeria.
What international anti-corruption conventions apply in your jurisdiction?
The international anti-corruption conventions that apply in Nigeria are:
- the United Nations International Convention against Corruption, signed on December 9 2003 and ratified on December 14 2004; and
- the African Union Anti-corruption Convention, signed on December 12 2003 and ratified on September 26 2006.
Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
The key corruption and bribery offences in Nigeria include:
- accepting undue gratification;
- giving or accepting undue gratification through an agent;
- fraudulently acquiring property;
- fraudulently receiving property;
- committing offences through the postal system;
- deliberately frustrating the Economic and Financial Crimes Commission’s investigations;
- making false statements or returns;
- offering gratification by or through agents;
- bribing public officers;
- using an office or position for undue gratification;
- bribery in relation to auctions;
- bribing someone to provide assistance with, for example, contracts;
- dealing with property acquired through gratification;
- making false or misleading statements to the commission; and
- attempted or actualised conspiracy.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
There are no specific restrictions regarding hospitality. However, the law covers “obtaining property or any benefit of any kind” in the discharge of official duties.
What are the rules relating to facilitation payments?
No rules specifically relate to facilitation payments. However, any form of gift given to a public official in the course of carrying out his or her duties is strictly prohibited by the Code of Conduct for Public Officers, as contained in the 1999 Constitution.
Scope of liability
Can both individuals and companies be held liable under anti-corruption rules in your jurisdiction?
Yes. Both individuals and companies can be held liable, as the definition of ‘persons’ under the Corrupt Practices and other Related Offences Act includes natural persons, juristic persons and any persons of a body corporate. Further, the definition of ‘persons’ under the Criminal Code Act includes corporations within the ambit of criminal liability.
Can agents or facilitating parties be held liable for bribery offences and if so, under what circumstances?
By virtue of Section 7 of the Criminal Code Act, parties to a crime include accessories before the fact, accessories to the fact and accessories after the fact.
Can foreign companies be prosecuted for corruption in your jurisdiction?
Yes. Although the law does not specifically state foreign companies, Nigeria is a state party to the United Nations Convention against Corruption, which mandates it to fight corruption at all levels, public and private. Further, Section 61(2) of the Corrupt Practices and other Related Offences Act extends acts of bribery not only to public officials, but also any other person; it is wide enough in its ambit to give the prosecuting authorities jurisdiction to prosecute these foreign companies.
Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
Whistleblowers are largely protected. A whistleblower protection bill is currently before the House of Representatives. Other notable protection mechanisms can be found in the Federal Ministry of Finance policy on whistleblowing and the Financial Reporting Council of Nigeria’s Code of Conduct, which contains whistleblowing policies.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
Leniency is shown for cooperating with the enforcement authority. The Economic and Financial Crimes Commission (Establishment) Act makes provisions for plea bargaining, albeit indirectly.
Dispute resolution and risk management
Is it possible for anti-corruption cases to be settled before trial by means of plea bargaining or settlement agreements?
Yes. A formal framework for this was provided by the Administration of Criminal Justice Act in 2015 and in the Lagos State Administration of Criminal Justice Law in 2007, re-enacted in 2015.
Are any types of payment procedure exempt from liability under the corruption regulations in your jurisdiction?
No such exemption exists. The law provides generally for liability if a person is involved in an act which constitutes bribery and corruption.
What other defences are available and who can qualify?
There is generally no defence available for those found culpable; however, where proceeds from bribery and corruption have been returned, the courts have the discretion to reduce sentences.
What compliance procedures and policies can a company put in place to assist in the creation of safe harbours?
Companies can put policies in place which require persons to report to the enforcement agency whenever undue gratification is demanded from them. Companies can also put procedures in place to:
- identify customers’ identities and businesses;
- monitor transactions;
- perform customer due diligence;
- conduct background checks on employees; and
- operate a continuous monitoring system.
This is particularly important if such companies are listed in the Money Laundering Prohibition Act 2012 as covered institutions (ie, companies mandated to carry out due diligence and maintain proper records).
Further, under the Financial Reporting Council’s Code of Conduct for Companies, setting up internal structures to aid anti-graft activities is mandatory.
Record keeping and reporting
Record keeping and accounting
What legislation governs the requirements for record keeping and accounting in your jurisdiction?
The legislation governing record keeping and accounting requirements includes:
- the Companies and Allied Matters Act;
- the Money Laundering Prohibition Act;
- the Economic and Financial Crimes Commission Act; and
- the Financial Council Reporting Act.
What are the requirements for record keeping?
Requirements are usually specific to the body or organisation. However, all records should be easily accessible to the public and regulatory bodies for inspection.
What are the requirements for companies regarding disclosure of potential violations of anti-corruption regulations?
Any party (including a company) from whom gratification has been solicited or obtained must immediately report this fact to the nearest Economic and Financial Crimes Commission officer or police officer, together with the name of the offender (if unknown) or a true and full description of them.
What penalties are available to the courts for violations of corruption laws by individuals?
The penalties available to the court are mainly fines and imprisonment. For example, crimes such demanding a bribe, fraudulent acquisition or receipt of property and frustrating investigations are classified as felonies and can attract penalties of three or more years’ imprisonment.
Companies or organisations
What penalties are available to the courts for violations of corruption laws by companies or organisations?
The penalties available to the court are mainly fines and imprisonment. For example, crimes such demanding a bribe, fraudulent acquisition or receipt of property and frustrating investigations can result in imprisonment; however, companies are usually required to pay a fine. For serious crimes, the officer of the company may face imprisonment.