Nigeria signed the United Nations Convention Against Corruption on 9 December 2003 and ratified it on 24 October 2004. It also adopted the African Union Convention on Preventing and Combating Corruption on 12 December 2003 and ratified it on 26 September 2006.

Legislation

Nigeria has a myriad of legislation relating to anti-corruption, anti-money laundering, anti-bribery and related matters. The two principal laws, however, are the Independent Corrupt Practices and Other Related Offences Act 2000 (ICPC) and the Economic and Financial Crimes Commission Act 2004 (EFCC).

Offences

All relevant offences are not laid down in a single text but are spread over different sources, such as:

• the Money Laundering Act 1995;
• the Money Laundering (Prohibition) Act 2011;
• the Money Laundering (Prohibition) Act 2022;
• the Advance Fee Fraud and Other Fraud Related Offences Act 1995;
• the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994;
• the Banks and Other Institutions Act 1991; and
• the Miscellaneous Offences Act 1984.

There have not been any specific guidelines produced for the interpretation and enforcement of the principal national legislation, namely the ICPC and the EFCC. The two agencies derived from this legislation nevertheless have the responsibility of administering the Acts and offenders are charged to the courts (principally by the EFCC), which will decide the fate of individuals or corporate organisations.

There have not been any key amendments in 2022 to the principal legislation, namely the EFCC or the ICPC. However, there was an amendment to the Money Laundering Act 2011 which made it mandatory for money deposit institutions to report to the Special Control Unit Against Money Laundering under the EFCC any single lodgement in excess of NGN5 million in the case of an individual, and NGN10 million for a corporate body.

Definition of Bribery

Under Nigerian legislation, bribery refers to the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty.

Specifically, the ICPC prohibits direct or indirect giving/offering and receipt of bribes or gratification for the purpose of influencing official acts related to official duties. The various instances under which the bribes may be given or received are also treated under the ICPC.

The receipt, as well as the giving of a bribe, is an offence under relevant Nigerian legislation.

Components of Bribery

The components of bribery include:

• accepting undue gratification;
• giving or accepting undue gratification through an agent;
• fraudulently acquiring property;
• fraudulently receiving property;
• committing offences through the postal system;
• 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; and
• dealing with property acquired through gratification.

Classification of Hospitality Expenses

There are no specific prohibitions regarding hospitality expenses. Nevertheless, the law covers obtaining property or any benefit of any kind in the discharge of official duties.

Facilitating Payments

There are no rules under Nigerian law relating specifically to facilitation of payments. Nevertheless, any form of gift given to a public official in the course of carrying out their duties is strictly prohibited by the Code of Conduct for Public Officers, as contained in the 1999 Constitution.

Definition of a public official

A public official is defined under the ICPC as a person employed or engaged in any capacity in the public service of the federation, state or local government, public corporations or private companies wholly or jointly floated by any government or its agency, including the subsidiary of any such company, whether located within or outside Nigeria and includes judicial officers serving in magistrate, area or customary courts or tribunals.

State-controlled companies

The above definition of a public official will apply to individuals working in a state-controlled company or companies.

Bribery of Foreign Officials

Although the anti-corruption and anti-bribery legislation does not specifically criminalise the bribing of foreign officials in the same way the United States of America Foreign Corrupt Practices Act and the United Kingdom Bribery Act do, the extension of the definition of a public official to individuals working outside the country in a subsidiary of a state-owned or state-controlled company can be considered to prohibit bribery of foreign officials.

Bribery in Private Commercial Settings

Bribery between individuals or companies in a private commercial setting is also covered by the EFCC, which criminalises such acts.

There is no specific or known offence relating to influence-peddling under Nigerian law, although it is an act that is highly decried and deprecated.

There is also no known or specific criminalisation of influence-peddling of foreign public officials under Nigerian law, although it is neither actively nor passively encouraged or supported.

In Section 435, the Nigerian Criminal Code (NCC) makes it an offence for directors of a company to knowingly, and with intent to defraud, allow the keeping of inaccurate books. The offence is punishable by seven years imprisonment, upon conviction.

In addition, Section 436 of the NCC criminalises the making, circulating or publishing of any written statement or account which in any material particular, is to one’s knowledge false, with intent to deceive or defraud any member of the company or public. On being found guilty of this felony, one would be liable to imprisonment for seven years.

The ICPC, the EFCC and the NCC criminalise misappropriation of public funds by a public official, prohibit the unlawful taking of interest by a public official and define embezzlement by a public official as an economic and financial crime.

There is, however, no express or implied prohibition or criminalisation of favouritism by a public official, although such practice is officially denounced and discouraged.

There are provisions in Nigerian law for the commission of the offence of corruption through intermediaries or agents.

Specifically, 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.

There is presently no statute of limitation under Nigerian law that applies to the commission of the above offences.

Although Nigeria’s legislation relating to bribery and corruption does not have extraterritorial jurisdiction, the money laundering laws have extraterritorial reach.

Under Section 15(2) of the Money Laundering Act, the offence of money laundering has been extended to apply to natural or legal persons outside of Nigeria, whilst the laundering of the proceeds of foreign crimes is also punishable in Nigeria.

Corporate Liability

Companies can be held liable, as the definition of “persons” under the ICPC 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 purview of criminal liability.

Joint Liability

Under sections 11, 18 and 19 of the Money Laundering (Prohibition) Act, individuals and companies can be held liable for the same offence.

Liability of Successor Companies

There is no specific provision in the relevant legislation in Nigeria dealing with anti-corruption, anti-bribery and money laundering for successor companies to be held liable for the offences committed by an acquired or target company.

The relevant Nigerian laws relating to corruption and bribery do not generally provide a defence for those found liable. Nevertheless, where proceeds from bribery and corruption have been returned, the courts reserve the right or possess inherent powers to reduce sentences.

As stated above, there are presently no available defences to the identified offences and, as such, no exceptions to a defence.

There are no de minimis exceptions for the above offences under Nigerian law, particularly under the NCC.

However, under the Penal Code Act, applicable in the northern part of the country, there is a recognition of the de minimis exception, which states that an offence can be too trifle or trivial for the law to be concerned with it.

An example of this is the prosecution of a man by the EFCC in the northern part of the country for a cybercrime fraud which fetched him NGN100. The court determined that the amount was minimal and the offender had already made restitution and was asked to pay an additional NGN250.

There are presently no sectors/industries in Nigeria exempt from the offences relating to anti-corruption, bribery and money laundering.

Safe Harbour/Amnesty Programme

There are no specific provisions in the relevant laws in Nigeria for any form of safe harbour or amnesty programme based on self-reporting or adequate compliance procedures or remediation efforts.

Private Initiatives

Corporate entities can, however, formulate policies which require persons to report to the relevant government agencies whenever undue gratification is required from them. Corporate bodies 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.

Offences by Individuals

The penalties upon conviction for the above offences for individuals are mainly fines and imprisonment. Offences such as 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.

Offences by Companies

The penalties upon conviction for the above offences for companies are mainly fines. Offences such as soliciting and receiving a bribe, fraudulent acquisition or receipt of property and frustrating investigations can result in imprisonment for the officers of the companies involved in the acts. Nevertheless, companies are usually required to pay a fine.

Guidelines for Assessment of Appropriate Penalties

There are currently no guidelines for the assessment of appropriate penalties.

Minimum Sentences

Some offences have minimum and maximum penalties stated, and the court usually cannot go below the minimum or go above the maximum allowable penalties.

There are also offences that have provision for imposition of a monetary fine and/or a term of imprisonment or a combination of both.

The relevant legislation allows the enforcement agency – the EFCC – to ask for the offence to be compounded, so that only monetary payment is accepted in an amount not less than the maximum allowable.

Repeated Offences

Repeated offences are often punished more severely by the courts.

Duties to Prevent Corruption

The expectation of all the relevant legislation regarding corruption, bribery, money laundering and the enforcement agencies is that individuals and companies have an obligation or duty to prevent corruption by setting up a compliance programme.

Compliance programmes

The Anti-Money Laundering Act requires that the following compliance and control mechanisms be established:

• designation of an anti-money laundering (AML) chief compliance officer at management level;
• identifying AML regulations and offences;
• highlighting the nature of money laundering;
• identifying money laundering “red flags” and suspicious transactions;
• setting out reporting requirements;
• conducting customer due diligence;
• taking a risk-based approach to AML; and
• having a record-keeping and retention policy in place.

There is no formal national legislation for the regulation of lobbying activities in Nigeria, as there is in some other jurisdictions.

There is a Bill in force for an Act for the Registration of Lobbyists in Nigeria and for Matters Connected Thereto 2016, which has been pending in the Nigerian National Assembly since 2016.

Section 23 of the ICPC imposes a duty on both public officers and private individuals to report bribery transactions. While it imposes a duty on a public officer to whom a bribe is offered to report the incidence to the ICPC or the police, it also imposes a similar duty on private individuals from whom bribery is demanded. Failure to report such an incidence without reasonable excuse is an offence punishable with imprisonment and/or a fine.

Protection Mechanisms for Whistle-Blowers

Nigeria lacks a designated whistle-blower law that protects employees and citizens from retaliation if they report crime, corruption or public health threats.

Furthermore, Nigerian law does not recognise people who make such reports as whistle-blowers. Consequently, there are no legal mechanisms to protect whistle-blowers from retaliation.

There is no government agency that receives and investigates reports from workplace whistle-blowers, lends support or legal advice to whistle-blowers, or offers them protection from retaliation and adverse consequences.

Freedom of Information Act

Part of the few provisions in Nigerian law somewhat related to whistle-blowing are found in one paragraph in the Freedom of Information Act 2011.

The law requires public employees to disclose information in the public interest, including related to mismanagement, gross waste of funds, fraud, abuse of authority, and public health and safety dangers.

The law includes protections for public officials and people acting on behalf of public institutions from civil or criminal proceedings if they disclose information under the law – even if the disclosure would otherwise violate the Criminal Code, Penal Code, Official Secrets Act or another law. The Freedom of Information Act does not apply to the private sector.

There are incentives for whistle-blowers in Nigeria to report bribery and corruption. These incentives are mainly monetary and include the Whistle-Blower Policy of the Federal Ministry of Finance, which entitles the whistle-blower to between 2,5–5% of any sum recovered due to the information provided.

There is a whistle-blower policy in place, issued by the Federal Ministry of Finance. The Whistle-Blower Protection Bill has been before the Nigerian National Assembly since 2016.

The enforcement of the anti-bribery and anti-corruption laws in Nigeria is purely a criminal process. The offences are considered criminal in nature and the system is not yet so sophisticated to allow for civil or administrative enforcement.

Enforcement Bodies

The EFCC and the ICPC are the two principal bodies which have the responsibility of enforcement of anti-bribery and anti-corruption provisions in both public and private sectors.

Their jurisdiction also extends to enforcement of failure to prevent or report corruption or bribery, as the case might be.

Interaction Between Enforcement Bodies

The co-operation between EFCC and ICPC, whilst in existence, is not as robust as it should be.

In the first place, although the ICPC primarily has the responsibility of investigating corruption and bribery cases amongst public officials, it does not have the powers to prosecute offenders.

The EFCC, on the other hand, has both the powers to investigate private and public officials for corruption, bribery and money laundering, and to prosecute them.

Enforcement Bodies Areas of Competence and Authority

The EFCC is in charge of the following:

• investigating and prosecuting economic and financial crimes (the relevant legislation sets out financial crimes to cover several areas such as bank fraud, tax evasion, capital market fraud and futures market fraud);
• acting as the nationwide co-ordinator for 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 ICPC has the following key functions:

• investigating reports of corruption – with specific reference to 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.

The Special Fraud Unit of the Nigerian Police Force

The special fraud unit and anti-fraud section of the Nigeria police force investigates high-profile local and international fraud cases.

The Code of Conduct Bureau/Tribunal

The Code of Conduct Tribunal enforces disciplinary measures against government and public officials who are found to have breached the Code of Conduct for public officials.

The respective legislation on anti-corruption, anti-bribery and anti-money laundering makes it mandatory for the enforcement bodies to be provided with information or documentation, once they request it.

Failure to provide the requested information or documentation to the enforcement bodies is considered an offence punishable with a fine or a term of imprisonment, or both.

Mitigation by Enforcing Powers

The EFCC is the enforcement body that has the legal power to also prosecute offenders, and is empowered by the law to exercise its discretion for mitigation in enforcing its powers.

In this regard, the EFCC can choose to compound an offence that is punishable by both the payment of a monetary fine and a term of imprisonment, to only the payment of a monetary fine that would not exceed the maximum fine allowable for the offence.

Examples of mitigation

The EFCC can elect to compound an offence and request the courts to impose only a monetary fine and not a term of imprisonment, in the case of a first-time offender or someone who co-operated in the course of investigation.

The EFCC can adopt a plea bargain arrangement where the offender is given a lighter sentence for return of the proceeds of corruption, bribe or money laundering.

Nigeria does not have in place a system of non-prosecution or deferred prosecution arrangement for offenders.

The jurisdictional reach of the EFCC is both local, national and international. For instance, Nigeria’s anti-money laundering laws have extraterritorial reach. Section 15(2) of the Money Laundering Act states that the offence of money laundering has been extended to apply to natural or legal persons outside of Nigeria. 

Landmark Investigations

• The investigation by EFCC of alleged collusion and corrupt practices between Nigerian government officials and a company known as Process and Industries Development Limited over a contractual agreement that resulted in the arbitral award of NGN8,9 billion against Nigeria.
• The investigation by EFCC of a former Nigerian Minister of Petroleum Resources over alleged acquisition of properties, assets and theft of cash in excess of NGN350 billion through corrupt means.
• The investigation by EFCC of Marine Assets and Offshore Equipment Limited over alleged conspiracy, money laundering and stealing in relation to a sum in excess of NGN15 billion, paid into the company’s bank accounts.
• The investigation by the EFCC of a company promoter who is alleged to have absconded with depositors’ funds in excess of NGN120 billion.
• The investigation by the EFCC of four government officials for alleged fraud and corrupt enrichment in excess of NGN45 billion.
• The investigation of the former governor of a state over corrupt enrichment and fraud in the sum of NGN35 billion.
• The investigation of a former governor of a state over corrupt enrichment in the sum of NGN150 billion.
• The investigation of the former Accountant General of the Federation over fraud and embezzlement in excess of NGN109 billion.

Landmark Decisions

• The conviction of a former managing director of Fidelity Bank for embezzling a depositor’s funds in excess of NGN50 billion.
• The decision by the Supreme Court upholding the interim forfeiture to the federal government the sum of NGN6 billion belonging to a former First Lady of the country as constituting questionable wealth.
• The decision by the Federal High Court ordering the final forfeiture of houses and vehicles worth about NGN2,5 billion belonging to a former Nigerian Minister of Petroleum Resources being proceeds of corruption.

The level of sanctions imposed for the above offences on individuals and legal entities has ranged from monetary fines involving restitution, to forfeiture of the proceeds of corruption and bribery and to imposition of varying terms of imprisonment for officers of legal entities who were the directing minds in the commission of the offences.

The Conference of the States Parties to the United Nations Convention Against Corruption assesses Nigeria’s compliance with international requirements and also the strength of the legislation and policies established.

Key strengths have been identified in the areas of legislation, establishment of bodies and agencies to enforce the country’s anti-corruption and anti-bribery legislation.

Weaknesses have been highlighted in the areas of training personnel and public officials on global best practices and ethics.

There are no foreseeable changes to the applicable legislation or the enforcement bodies. Although in May 2022, the President of the country signed into law the Proceeds of Crime (Recovery and Management of Assets) Act which sets up another agency or body to deal with the tracing and recovery of proceeds linked to corruption and bribery.

Both the EFCC and ICPC have complained that this new agency will duplicate their current responsibilities, create bureaucratic bottlenecks and dilute their powers.