Legislating Against Corruption

SAM AMADI

The general belief in development circles is that but for the disastrous effects of corruption, a country like Nigeria would have had stronger economic growth and a more widespread and sustained economic and social transformation.

By some account, pervasive and grand corruption is one reason the country and similar countries in Africa are facing existential crises of political instability and economic bankruptcy. Corruption has robbed these countries of State effectiveness required for economic development. Corruption has made the prospect for such development in the near future bleak. In the case of Nigeria, corruption has resulted in billions of dollars of public revenue that would have been used to build critical infrastructure, like the type we see in Dubai and other less corrupt countries like Singapore and South Korea, disappear into private pockets. So, corruption is a heavy drag on development. Corruption corrupts politics and leads to political instability and violent conflicts in fragile societies. Therefore, drastically reducing the incidences and pervasiveness of corruption should be the first order of business for a serious campaign to develop a country as fragile as Nigeria.

But commitment against corruption faces a challenge. Some people think the damage that corruption causes to the prospects of economic development in Nigeria as in the rest of Africa is exaggerated. There is a cynical debate in the literature of development that corruption is being exaggerated as a cause of Africa’s underdevelopment. This argument builds on the notion that western scholarship exaggerates the role of corruption in Africa’s economic and political crises to obscure the roots of these crises are in the colonial experience and the violence it unleashed. These scholars point to the presence of pervasive corruption in East Asia while they were economically developing. So, if corrupt Asia developed in spite of corruption, then corruption is not the big deal that western scholars make it out.

This argument rests on some incontrovertible facts. First, is that there was a high level of corruption in Asia. And that in spite of corruption, Asia developed. But corruption is hailed as hinderance to economic development in Africa. Therefore, are we not exaggerating the impacts of corruption? Is corruption truly the main cause of our underdevelopment? This argument may sound persuasive, but it is fallacious. The assumption that all forms of corruptions matter the same is not true. No. The deleterious effects of corruption depend on the nature of corruption. There are different kinds of corruption. Receiving a kickback from a contractor who still goes ahead to build a durable road is corruption. But it differs greatly from stealing the entire money for road construction and never constructing the road. It is also different from creaming off half of the budget for a public health facility and building a health center without drugs and medical personnel. The sort of corruption in Asia in its development period was mostly benign, while those in Nigeria are malignant. Corruption in Asia was largely petty corruption, whereas in Nigeria it is mainly grand corruption.

Robert Wade, renowned political economist, shows the difference between corruption in Asia and Africa in a tellingly passage in his classic on Asian economic miracle, titled ‘Governing the Market Economic Theory and the Role of Government in East Asian Industrialization’. In a footnote to a comment to the neoliberal Washington Consensus recipe for economic development, Wade observes that “The emphasis on ‘anticorruption’ in the good governance agenda of the international development community obscures the difference between modalities, some of which are more developmentally damaging than others. As a stylized fact, Indian civil works corruption takes the form of correct pricing of substandard structures which wash out in the next monsoon. Korean civil work corruption takes the form of inflated prices for properly built structures, which endure.” This statement underlines the importance of paying attention to the character of corruption in a society to determine the degree of its deleterious impacts and the pathways to tackle it. All societies are arguable corrupt. But not all societies are corruption in the same manner and degree.

Corruption is a moral problem everywhere. But it is an existential crisis in Nigeria. Today, Nigeria is almost overrun by terrorists. Abuja is in the grips of palpable fear and anxiety. The municipal government has asked all primary and secondary schools to shut down. Night life is almost completely shut down. Government is mulling a ban on the use of moto bikes in the city. Soon, it will probably ask workers to stop coming to work. All for fear of Boko Haram. But many people think that terrorism in Nigeria is merely a military, technical challenge. That is not true. It is also a political, administrative challenge. At the heart of administrative challenge is corruption. Yesterday, the Daily Gazette reported that one of those recently released from ISWA captivity narrated how Nigerian soldiers sent to curb insecurity shared N100m of the ransom money. Nigeria’s military icon, General Danjuma, a few years ago warned that the Nigerian military has become so de-professionalized to become an ethnic fighting force. We have heard anecdotes of retired military office about how their commanders frustrated the killing of Boko Haram fighters because of religious or ethnic affiliations and sentiments.

All these are dimensions of corruption that are extremely dangerous because they can lead to complete collapse of the state. So, while the public official in Korea inflates the price of building a solid structure that endues (and in the process makes a couple of million dollars), his Nigerian counterpart allows dangerous terrorists to infiltrate military fortresses and overthrows the state. Corruption amongst the top brass of the military and civil administrators in Nigeria has so emboldened Boko Haram and ISWA terrorists that they are now confident of capturing Nigerian president and one of the strongest state governors in Nigeria. This is the dimension that corruption did not manifest in the successful East Asian countries. Those countries had what political economists call ‘State effectiveness’. These States were effective States because they had strong normative foundations. They were not transaction States that exist to allow elites extract revenue and promote narrow ethnoreligious interest. The elites of those successful East Asian countries may be brutal, and even corrupt, but they had a strong mission and unalloyed commitment to the survival and development of their country, not of their religion and ethnicity.

These ramifications of corruption point to one thing: that we need to understand the scope and character of corruption in a country to understand how much of a threat it poses to the survival of the country and the cocktail of interventions required to move such country from dire to moderate pathological condition. Corruption in Nigeria is widespread; it is endemic and interred in the foundational institutions of public administration. Such a situation requires a more mixed cocktail than what is conventionally advised.

How Important is Law to Anticorruption?

It is assumed that law provides an answer to every social problem. This is what some scholars refer to as legalism. Legalism is a belief or mindset that perceives law and legislation as the answer to every social problem. The Harvard political theorist, Judith Skhlar, defines legalism as “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules”. Legalism emphasizes that “the court of law and trial according to law are the social paradigms, the perfection, the very epitome of legalistic morality”. Legalism has various manifestations in the anticorruption campaign. It first manifests as a misunderstanding of corruption as an absence of strong deterrence and the weakness of stiff penalties for corrupt practices. Again, it manifests as a commitment to enact more laws with stiffer penalties, without paying sufficient attention to the socioeconomics and the moral environment of the administration of justice.

Legalism is a common error. It is actually an intuitive response to a problem. When we conceive of government as the entity that enjoys the monopoly of violence and that exerts such violence to order social behaviors, we will also resort to demand for law as the panacea of all social problems. No doubt, laws are important for solving social problems. But laws are not everything, especially when they are not embedded in important social dialectics and relationships that determine their effectiveness.

The answer to the question about the importance of law to the fight against corruption is that law is very important. The role of law in the development process is now well entrenched to the point that the World Bank and other international financial institutions consider legal reform as a core component of economic development strategies for country struggling to exit underdevelopment. This is why the law and development discourse has become one of the most important and established discourses of development. The assumption behind the law and development discourse is that law matters for development because of its capacity to constrain and enable different behaviors as well as directs the distribution of resources and incentives in the political economy. To put it in the language of New Institutional Economics, we can say that law is at the center of institution that condition growth and transformation in a society. If, as the apostle of institutional approach to economic development, Douglas North, puts it, institutions are humanly devised constraints and enablers for human actions and interaction, then law is one of the most important institutions of development.

But Douglas North also recognized that ‘rules, procedures, and norms’ of collective action are part of institution. Some of these ‘rules, procedures and norms’ are informal. So, we move from the error of legalism to the error of formalism. Formalism believes that what matters are formal rules of a society and not informal rules. But we know from experiences that oftentimes, in spite of formal rules, people actually act in line with the prescription of informal rules. If our strategy of change focuses only on formal rules, we miss out a powerful dynamo of social behavior. We need to engage together formal rules and procedures and informal norms and customs if we want to succeed in our strategy of change.

Ingredients of Effective Legislative Interventions Against Corruption:

Law is important in redesigning the framework and incentive structure of social behavior. Therefore, the legislature has a key role to play in the fight against corruption. The legislature has to enact laws that are effective in mandating behaviors that are transparent and accountable and prohibiting conducts that are dishonest and serve private interest at the detriment of public good. A legislature that is truly committed to anticorruption has to consider many issues as it set about to change the incentive structures that encourage or facilitate corruption.

First, the legislature should have the will to take hard actions to change the society. Corruption is difficult to overcome because it is usually beneficial to those who exercise power in a society. These men and women of power will block any serious change of the game. This is why, as they say, corruption fights back. These men will work hard to undermine the proposed new regime by blunting the sharp edges of the law. So, the legislature must have the courage to provide the necessary constraints in the new law. This is what we call political will. That is the will that those who exercise political power have to change the structure of society that enables powerful men and women to predate on the state. This is the scarcest commodity in the political market. The lack of such will is wired in the psychology of those who wield political power in the society.

If there is political will, the legislature next seeks adequate and clear understanding of the dialectics and pathology of corruption in its society. Every society differs from another. Therefore, the dialectics and pathology of corruption will not be the same, even as we draw common lessons and apply universal principles. To attain this level of social knowledge you need a social science of law making that diagnoses the malady before applying ill-conceived prescriptions. Like in diseases, the cure can be worse than the disease if you do not apply the cure appropriate to the disease. This is where mindless legal transplantation of institutions in other climes could be a cure worse than the disease. Under the influence of the World Bank and other global financial institutions, countries like Nigeria have embarked on legal transplantation of the legal regimes in other advanced economies as part of the neoliberal compulsion to adopt the so-called ‘Washington Consensus’. But we got anticorruption laws without the economic and political culture, norms, and incentive structures that support and reinforce the legal regimes. The result is that we have an Economic and Financial Crimes Commission (EFCC) that is often an accused in corruption allegations than a fighter of corruption. We have Governors who are facing trial for grand corruption freely contesting for the highest office of the law. These laws and the institutions created under them are ineffective because they are not supported by complementary political culture and norms of collective action.

The law means nothing except it is ultimately effective. The effectiveness of the law depends partly on how it responds to clearly understood pathology of the social disease it wants to cure. If the lawmakers miss out on this pathology and make laws based on a different social context or some hazily understood concepts, then such laws will not be effective. Again, effectiveness of the law requires comprehensive and coherent diagnosis. Jeffrey Sacks, a man who engineered so many failed reforms, learnt the lesson from his wife, a clinical doctor, who offered him the concept of ‘differential diagnosis’. As he puts it in his book, End to Poverty, the development economics that informed much of the legal transplantation in the developing countries lacked ‘rigor, insight, and practicality’.

Looking back on the experience of failed or ineffective reforms, Sachs drew some lessons from clinical medicine that development economists should always bear in mind as they work to reform society. First, they must realize that a society, like human body, is complex. You cannot offer simplicist solutions to deal with complex situations. Second, is that a complex system requires differential diagnosis. You cannot conclude on the illness based on presumed knowledge. You have to seriously investigate and diagnose. Third is that all medicine is family medicine. If a child is perennially sick, you have to pay attention to her living condition. Find out how the parents are doing. In the same view, you cannot make laws to stop fraudulent procurements when you have several exceptions from due process for many agencies. You cannot cure grand corruption if the laws you make do not prescribe open disclosure of assets by the president of the republic and all the high officers.

Extrapolating from clinical medicine to legislative intervention in anticorruption, these are certain disciplines required for an effective legislation. A legislature cannot make law as it fancies without paying attention to the nature of the social problem it wants to solve and the social context of the problem. The social science methodology for law making proceeds from a research report of the problematic behavior that constitutes corruption. This report identifies the incentive structure that drives and sustains corrupt practices. It benefits from theoretical explanations of the social pathology. Many scholars of corruption have highlighted that corruption is sustained by collective action norms and the principle of reciprocity. Therefore, merely criminalizing corrupt practices will not effectively tackle it. An effective legal intervention must be such that can recreate a different system of reciprocity and lead to a different collective action.

The important question is whether the institutional resources of the legislature can manage the level of complexity that sustains corruption in Nigeria. Nigerian legislature, like those in many African countries, lack the capacity for transformative legislative work. As the United Nation Economic Commission for Africa (UNCA) reported in 1985, African legislatures lack the technical capacity to enact laws that will transform their society. This technical incapacity is worsened by lack of political independence to make good and transformative laws, laws that constrain the executives from acting corruptively.

We cannot expect the legislature to tackle corruption through legislative interventions if we don’t build its intellectual capacity. We have to enhance the research capability of the legislature to enact effective laws. A review of some of the laws enacted by the legislature in Nigeria proves the necessity and urgency of such capacity building. It is not enough to make smart laws. They need to be effectively enforced. Without effective enforcement of smart laws against corruption, there will be little prospect of success in tackling corruption.

Laws on the shelf do not change society. effective implementation of these law is what changes society. Therefore, a successful reform does not end with enacting smart law. For effectiveness, those laws must be implemented in the manner envisaged by the law and to the degree that it can change the incentives driving the problematic behaviors. This is why one of the lessons Sachs discussed as part of his extrapolation from clinical medicine is the need to monitor and evaluate outcomes. After medication, the clinician returns to the patient to evaluate the efficacy of the treatment. The same with laws. After enacting the best laws that notionally can tackle corrupt practices and the collective action norms that encourage it, the legislature must review how public institutions are implementing the laws. This is the idea of legislative oversight. It is the form which monitoring and evaluation take in the legislature.

But with monitoring and evaluation we encounter the same problems of capacity and political will. The legislature in Nigeria lacks the institutional framework and resources to conduct very meaningful oversight of executive action. Often Nigerian legislature does not use experts outside the legislature to review and report on the performance of anticorruption agencies. More important is that the legislature does not care much about the performance of executive agencies or the implementation of the laws it makes. This lack of ‘political will’ is the biggest setback to a proposition of fighting corruption through effective legislation.

Conclusion: How We Can Defeat Corruption:

To end this discourse, we can state clearly that Nigeria has a corruption problem. it is obvious. In fact, corruption is presently collapsing Nigeria. The statement that either Nigeria defeats corruption or corruption destroys Nigeria is not a hyperbole. As a friend once said, Nigeria could be the first country to disintegrate because of sheer incompetence and corruption. Many countries have disappeared in the past due to the weight of contradictions, either of ethnicity or religion, but corruption and the grave incompetence that rides with it, is the gravest threat that faces the country.

We also know that Nigeria can rise above this threat. Nigeria can have a decent and honest public leadership. Everything, apart from God, is created. Therefore, everything can also be reversed or uncreated. It is possible but not easy. The biggest challenge in tackling corruption in Nigeria is forming a strong coalition against corruption that can make the relevant laws and enforce them with the single commitment required. This is a political act. Politics is the most important issue with corruption in Nigeria. Corrupt people are at the highest positions of power. Corruption is highly rewarding. Corruption is the lubricant of political machine in Nigeria. So, to defeat corruption, we must fix politics. We must have a political system that can bring to power people outside the circle of corruption and who have the incentive to cut the umbilical cord that connects governance to corruption.

Unless we fix politics, we cannot have the kind of leadership that will be willing and committed to use law to reshape the relationship of power in the society in a fundamental way that creates different dynamics of accountability. At the heart of corruption is a relationship between citizens and those who exercise power. In a society with truly democratic relationship between citizens, the institutions of vertical and horizontal accountability envisioned in laws will work. In a neo-feudal society where the ethics of egalitarianism has no roots, it will be difficult to maintain the level of differentiation between the private and public domains necessary for the modern concept of good governance. If we don’t have leaders who can redefine the relationship between citizens and rulers, who can create a new social compact between themselves and the people they lead, a compact that is rooted in ethical egalitarianism, it is doubtful that even legal transplants aimed at tackling corruption will be effective.

This is where political and social science insights work together. If we don’t have leaders who believe in the compelling normativity of accountable, ethically egalitarian society based on the clear difference between the private and public domain, we will lack the political will to reshape social interactions in the public sphere from graft to probity. Even if we have such leaders, we need to have the knowledge of the dynamics of the nature and mechanisms of corruption to effectively devise interventions to undermine the institutional and cultural basis of corruption. This we can do through wise law.

But beyond law, we need presidential leadership which is exemplified largely by the effective use of the bully pulpit to reorient society and the employment of the power of coherent actions to signal to everyone the advisability of a new moral order. That is the essence of leadership. It shows in the quality of law the legislature makes. But it goes beyond law, to what presidents and other high officials say and do.

In the matter of tackling corruption, an ounce of coherent high-profile act is more powerful than a pound of law.