AN EXAMINATION OF THE FINANCIAL CRIMES UNDER THE NIGERIAN CRIMINAL LAW
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CHAPTER ONE
INTRODUCTION
1.1 Background of the study
The Criminal Code Act1 is currently a law of general application for criminal acts in southern Nigeria, while the Penal Code Act applies in the North[1] . There is no doubt that most of the crimes that are now described as cyber-crimes are already contained in the Criminal Law and Penal Code Act respectively. [2] For example, under the Act, advance fee fraud may be a false pretence, while a successful Internet scam would amount to a crime under section 419 which provides that:
Any person who, by a false pretext and with intent to defraud, obtains from any other person anything likely to be stolen or induces a person to deliver to another person anything likely to be stolen, A crime and liable to imprisonment for three years. If the thing is worth a Naira mile or higher quarters, it is liable to imprisonment for seven years. It is irrelevant that the thing is obtained or that its delivery is induced by means of a contract induced by the false pretence.
Financial crime as a concept lacks standardized and unified definition and therefore, can be conceptualized from different perspectives depending on the jurisdiction and the context of use. Article 46 of the Economic and Financial Crime Commission (EFCC) defines economic and financial crime as “non-violent criminal and illicit activity committed with the aim of gaining wealth illegally either individually, in a group or in an organized manner[3] .
Economic activities of the Government and its administration and includes all forms of fraud, drug trafficking, money laundering, embezzlement, corruption, looting and all forms of corrupt practices, illegal weapons, Smuggling, trafficking and child labor. Illegal mining, tax evasion, fraudulent currency practices, including currency counterfeiting, intellectual property theft and piracy, market abuse, dumping of toxic wastes and prohibited goods,etcIt can be considered a non-violent crime, equivalent to sabotage of the national economy, resulting in financial losses or intentional gains of illegal wealth, individually or in an organized manner, in violation of the legislative provisions governing economic activities. Sutherland includes cyber-fraud and identity theft, fraud in advance, money laundering, credit card fraud, terrorist financing, embezzlement (corruption), tax evasion, inventory manipulation, etc.
In its report on corrupt practices in the world, Transparency International’s (T.I) survey covered 146 countries. In this report, Nigeria was ranked the third most corrupt country, defeating Haiti and Bangladesh in second and final positions, respectively. The report was an improvement over that of 2000, when Nigeria was reported as the most corrupt country in the world. Statistically, Nigeria’s corruption perception index (CPI) was 1.2 in 2000, contrasting with those of Finland (10.0), Denmark (9.8) and New Zealand (9.4). Nigeria has probably taken the floor to criticize the report of T. I. 2004; highlighting serious defects in the way the results were achieved. These included the following: (Report T.I. 2014).
Only the bribe takers, not givers or abettors, are punished, while the CPI ignores the origin of the bribes from companies;
- Asymmetrical and unrestrained country coverage, the list of countries changes from year to year;
- Prejudiced sample: more than 90.0 per cent of the world is missing; the sample is private sector oriented, overwhelmingly male and the welloff;
- Inexact and sometimes ill-informed sources — some sources are used that do not measure corruption levels at all;
- Far too narrow and imprecise definitions of corruption are used, couched entirely in terms of public extortion, with the private sector as its victim;
- Does not measure trends: and therefore cannot reward genuine reformers, even if the reforms are making a difference; and
- The index is misused by development agencies in making decisions as to which countries to “reward” with aid.
[4] According to Kaufmann, in practice corruption can be well organized or chaotic. When properly organized, the required amount of bribe is well known, and payment ensures that the desired favor will be obtained. Under chaotic corruption, however, the bribing bidder must corrupt several officials without guarantee or that he will not face other requests for bribes or that the favor sought will actually be given. [5] Both types exist in Nigeria. Corruption is a universal disease and every country is making efforts to combat it. The fact that much of the corruption in developing countries has a high level of involvement of the industrialized countries is common knowledge. Frequent accusations against oil multinational corporations in their corrupt practices to corrupt government officials, local leaders and elites in the Niger Delta region of Nigeria testify to the truth. This often results in social dissatisfaction and violence.
Economic and financial crimes are closely linked to changes in the socioeconomic level of any society. Thus, a society in transition from the primitive state to the modern or industrial state often experiences a marked increase in the level of economic crime. Although this is a general phenomenon, the lamentable effect of such transformations is generally more pronounced in reliant on economies where the skirmish for substantial benefits habituallyhastens the commission of various economic crimes[6] .
Financial and economic crimes in Nigeria can be traced back to the primordial scene[7] . It has a long history, if not “respectable” – transcending the pre-colonial, through the colonial, post-colonial era of Nigeria’s development. As a result, Mamadu observes that in the pre-colonial era, the appointment of officers in the courts by traditional leaders was characterized by corruption[8] . Forced labor, bribes, extortion in the form of arbitrary fines and illegal taxes helped to maintain a client system and the farmers were afraid to complain because the leaders took advantage of this opportunity to grow.
[9] During the colonial era, our nationalists were each accused of varying degrees of corruption, one of which is the African Continental Bank (ACB), pre-independence fraud involving leading Nigerian politicians prior to Nigeria’s independence in 1960 After the Civil War, who left the barracks and were now after seats in the government plundered the economy, seizing the opportunity to divert domestic funds to their private pockets.
Failure to prosecute financial crimes carries potentially devastating effects and is tantamount to sabotaging the national economy, security and social well-being of the people[10] . In accordance with the intellectual postulation of classical criminology launched by Jeremy Benthem: the human being by nature is the search for pleasure, rational calculators, and conduct by hedonistic rationality, ready to maximize pleasures and avoid pain[11] . The implication of this analogy is the fact that criminals weigh the penalties to be prosecuted against the potential benefits of their criminal enterprises. Thus, if the criminal elements believe that the probability of being prosecuted is greater than the potential benefit of the law, they will certainly refrain and will be deterred from committing the crime. In addition, when prosecutions are quick and certain, other potential criminals will be discouraged and willpower will be a general deterrent. This is why an inadequate prosecution of financial offenses is not limited to the emergence of potential criminals but also to the recidivism of more experienced and better trained financial criminals.
Nigerians are not criminals born in the Lombrosian sense, what happens is that people commit crime so often with associated benefits and little or no associated costs: it encourages the aggressor to continue in his ways Deviant while spectators and spectators adore and imitate deviant ways. Both criminals and spectators see the dividends of crime and thus criminal culture or criminal channels are initiated, strengthened, maintained and perpetuated. In short, Nigerians take to crime because crime pays; when crime pays, it is produced and replicated because rewards are high and inexpensive or non-existent[12] .
[13] The revolutionary revolution in information and communication technologies (ICTs), influencing the current dynamics in the business world, accentuated by the wind of globalization blowing across nation-states, leading to the elimination of trade barriers between the increase in the volume and volume of trade. Improving the speed of economic advancement and improving the standard of living has also created an environment conducive to the proliferation of criminal financial enterprises in the of global enterprises affecting the private and public sectors with the accompaniment of global financial losses. Because the modern financial system promotes and facilitates local and international trade, financial criminals are also allowed, through modern global financial liberalization, to instantly transfer millions of dollars around the world through available information infrastructures such as The Internet, the electronic transfer of funds Bank transfer) and the rest[14] .
Successive governments in Nigeria have regularly undertaken various anti-corruption programs to educate society as a whole about the negative effects of corruption on the nation’s economy and the country’s image on the international scene[15] . Highlighting the efforts of past regimes in the fight against corruption, this study is inspired by MurtalaMuhammed’s general war on corruption in 1976, which resulted in a major purge of the public and private sectors; The Jaji Declaration in 1977 by OlusegunObasanjo, signaling the start of the second phase battle against the rampant culture of corruption, corruption and indiscipline; The Ethical Revolution of Shagari from 1981 to 1983; War against Indiscipline by Buhari-Idiagbon in 1984; The National Orientation Movement in 1986 and the Mass Mobilization for Social Justice by Babangida in 1987; In the war against indiscrimination and corruption by Abacha in 1996. The country is more corrupt than the imagination of the outside world. Corruption transcends our unemployed young people who are transformed into security risks for society. The cases of advanced fraud (419), reimbursement, initial payment of ten per cent of contracts, value to officials for past contracts, gratuities to public office holders for the performance of their legitimate duties in their offices, etc. in Nigeria[16] .
The Obasanjo administration of 1999 with the aim of suppressing the proliferation of financial crime in the country took a radical and radical step with the establishment in September 2000 of the Crimes and Related Crimes Commission (ICPC) and the Crimes Commission Economic and Financial Crisis (EFCC) in 2004, with a mandate to prevent, detect and investigate all cases of economic and financial crime in Nigeria[17] .
[18] The fight against corruption, announced by President Buhari, degenerated into a demolition derby. As has been the case with many previous efforts to fight corruption in Nigeria, different positions of power and influence in the president’s coterie seem determined to use the fight against corruption as a cover for settling intra-palace scores. The Commission on Economic and Financial Crimes (EFCC), headed by an interim President, is continuing the proceedings against the President of the Senate before the Code of Conduct Tribunal. The Senate, whose president is accused of corruption by the EFCC, refused to confirm that the acting president of the EFCC had cited a report by the State Security Service (SSS) accusing the candidate of abuse of power And human rights.
1.2 Statement of the problem
The undisputed and most important challenge facing Nigeria today is underdevelopment and, along with this, poverty among citizens has threatened human and national security. The problem can be attributed to the lack of good governance and / or transparent leadership both in the private and public sectors of the economy, so that the interests of Nigerians in the amenities for a good life or the improvement of the human condition by providing goods, decent and affordable housing, education, water, electricity, a good road network and a transportation system, etc. In short, one could say that the Nigerian state has unfortunately failed in fulfilling its fundamental mandate of providing social and security services[19] .
First, is the societal acceptance of corruption; we live in a country where thieves are made kings while good people are considered imbeciles (mumu). Those who have stolen public funds receive high honors and receive traditional titles and national honors. Corruption has found an enabling environment in Nigeria. Hard work is not considered a virtue, which is considered the culture to get rich quickly[20] . At the heart of this problem are the endemic economic crimes that have been observed recently, so to speak, in the proportion never imagined and experienced since the emergence of the Nigerian State in 1960.
Nigerians around the world are considered fraudsters and as such label with unpleasant comments such as: Colin Powell “Nigeria is a nation of (170) million people. With an enormous wealth, what they could have done with wealth over the past twenty years – they just pissed away. They just tend not to be honest. Nigerians as a group, frankly, are wonderful Scammers; it’s in their national culture. “Nigerians are perhaps the most organized criminals of all on a global scale, and Nigerians are the “worst perpetrators of financial crimes in the world”[21] .
In recognition of the endemic dimension of economic and financial crimes in Nigeria as well as the negative perceptions of Nigerians, theObasanjo Civil Administration took a major step forward with the establishment of the EFCC. Pursuant to section 6 of the Act, the Commission has enormous regulatory powers over these activities, including the investigation of all financial crimes such as fraud, money laundering, Counterfeiting, illegal tax transfers, fraud on futures markets, fraudulent collection of negotiable instruments, credit card fraud, contract fraud, etc. It shall also be responsible for adopting measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, offenses relating to economic and financial crimes or property the value of which corresponds to that proceeds; adopt “measures to eradicate the commission of economic and financial crimes”[22] .
It is clear that the impact of financial crime is far-reaching on: the person as a victim as in the case of fraud, companies or companies as victims, government institutions as victims, international order as victims, Society as a victim. Despite these seemingly noble efforts of the government to combat financial crime, it is sad to note that most senior government officials are deeply involved in malicious financial practices. Corruption inhibits development because resources for public services are diverted to individual portfolios. The quality of services rendered is seriously affected by the standard. Some government development projects are often abandoned or left unfinished after collecting the mobilization costs (and possibly repaying in advance 10% of the total value of the contract to government officials who awarded the contract)[23] .
1.3 Objective of the study
The general objective of this study is to examine the financial crimes under the Nigerian criminal lawwith idiosyncraticallusion to the Economic and Financial Crime Commission (EFCC) duty with the legalobligation to prevent, detect and investigate all cases of economic and financial crimes in Nigeria.
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[1] Ladan, M.T.Crime Prevention and Control and Human Rights in Nigeria, Zaria, ECONET Publishers. 2012
[2] Oshisami, K. Criminal Law and Penal Code Act respectively and Financial Control, Lagos, Spectrum Books Publishers. 2011
[3] Agara, T. and Olarinmoye, O. 2013. Ethics and accountability in Nigerian Public service, pp 11-18. www.academicjournal.org,consulted on February, 2017
[4] Daniel. Kaufmann, 2005, governance matters and indicators, http://siteresources.worldbank.org/.pdf, consulted on 03.10.2013.
[5] Bribery and Corruption Act, 2010, http://www.thebriberyact2010.co.uk,consulted on 29.09.2013
[6] Economic governance, http, consulted on 02.10.2013
[7] Economic and Financial Crimes Commission, http://www.ask.com, consultedon30.09.2013
[8] Economy, http://www.proshareng.com,consulted on 26.09.2013
[9] Fact Monster, n.d, http://www.factmonster.com, consulted on 05.10.2013
[10] Justice, E. Ayoola, O. 2005, “Corruption in Nigeria: and the way forward”, speech delivered at the 50th Anniversary of Ilesha Grammar school, Ilesha Nigeria.
[11] Louis de koker, Journal of money laundering control, 2012,http://www.emeraldinsight.com.ezproxy.turkuamk.fi, consulted on 02.10.2013)
[12] Ogwumike, F. Nigerians are not criminals born in the Lombrosian sense, what happens is that people commit crime so often with associated benefits and little or no associated costs, Ibadan Nigeria.2014
[13] Pressreleasefinalreport,https://www.fic.gov,consulted on 04.10.2013)
[14] okoye, L. This is because, as modern financial system encourages and facilitates local and international commerce. 2013
[15] Sala, M. and Subramanian, A. Economic development of Nigeria on corruption, Columbia University. 2011
[16] Samuel. T.;Nwagwu, E. War against bribery and corruption in nigeria, http://www.nigeriavillagesquare.com, consulted on 30.10.2013
[17] Todaro, M. “Economic development”.suppressing the proliferation of financial crime pp 215-219. Pearson Education. 2011
[18] Odinkalu, C. (2016). Buhari and the fight against corruption: Available at :http://www.vanguardngr.com/2016/12/buhari-fight-corruption/….Last assessed on 2017
[19] The Sun newspaper, stop celebrating corruption, Jonathan advice Nigerians, http://sunnewsonline.com/new/business/stop-celebrating-corruption-jonathan-advises-nigerians/, consulted on the 13.10.2013.
[20] Transparency International (2011-2013), “corruption index”, various issues, http://www.transparency.org/cpi2013/results, consulted on the 16.01.2014.
[21] MBA admits that the level of corruption is high in Nigeria, December 2013, www.ngrguardiannews.org,consulted on 06.01.2014.
[22] Colin , P. 2015.Finance development, “Corruption causes, consequences and Agenda for further Research,” pp.11-14.Emerald management review.
[23] Financial crime is far-reaching on: Nigerian government, n.d, http://www.nigeria.gov.ng, consulted on 23.10.2013
