The Place For “Kick-Backs” & “Bribes” In Our Efforts To Kick Back Corruption & Kick-Start Responsible Governance In Nigeria (A Legal Opinion By Sylvester Udemezue)

INTRODUCTION:

It appears from recent happenings in the Nigerian legal and
political space that while a section of our leaders does not see
any distinction between “kickbacks” and “bribes” for purposes of
determining criminal responsibility in corruption cases, another
section believes that the latter is clearly distinguishable from
the former. In defence of the former school of thought, the
incumbent Commissioner for Rural and Community Development in Kano
State, Nigeria, Alhaji Musa Iliyasu-Kwankwaso,
recently declared as follows:[i]

“Since the three years of this administration, the
contractors have been giving the kickbacks…. This kind of
percentage … is rampant in every level of government, from federal
up to the local government level. It is nothing new.”

A major duty legal researchers and rule of law campaigners owe
society in the practice of constitutional democracy for promotion
and sustenance of responsible and responsive governance is to
constantly offer legal opinions on issues of law to guide our
leaders and institutions in the discharge of leadership
responsibilities. It is in view of this that we have decided to
undertake a short investigation into the three English words,
“kickback,” “bribe,” and “bribery,” with a view to determining the
extent to which “kickback” is or is not criminally actionable.

MEANING OF KICKBACK:

The Cambridge English Dictionary[ii] has defined “kickback” as “an
amount of money that is paid to someone illegally in exchange for
secret help or work.” According to the the Oxford English
Dictionary,[iii] a
kickback is “an illicit payment made to someone in return for
facilitating a transaction or appointment.” On its part, the
Longman English Dictionary defines a kickback as “money that
someone pays secretly and dishonestly in return for someone
else’ help” or “money that is paid secretly and dishonestly to
obtain someone’s help.” While maintaining that “bribe” is a
synonym of “kickback,” the Dictionary proceeds to offer an example
on the use of the word “kickback” in sentences: “He is on trial
for corruption and allegedly accepting kickbacks
from businesses.”[iv] On its part,
the Black’s Law Dictionary defines “kickback” in the following
words: “a bribe for routing a job, contract, or order.
Typically comes out of the income generated by the job, contract,
or order. Demanded by an official[v]^[1]

MEANING OF BRIBE:

Oxford English Dictionary: “a sum of money or
something valuable that you give or offer to somebody to persuade
them to help you, especially by doing something dishonest.”[vi] Black’s Law
Dictionary:[vii]^[2]
“any valuable thing given or promised, or any preferment,
advantage, privilege, or emolument, given or promised corruptly and
against the law, as an inducement to any person acting in an
official or public capacity to violate or forbear from his duty, or
to improperly influence his behaviour in the performance of such
duty. The term “bribe” signifies any money, goods, right in action,
property, thing of value, or advantage, present or prospective, or
any promise or undertaking to give any, asked, given, or accepted,
with a corrupt intent to Influence unlawfully the person to whom it
is given, in his action, vote, or opinion, in any public or
official capacity.”

MEANING OF BRIBERY:

A term used to refer to the receiving or offering of any undue
reward by or to any person whomsoever, whose ordinary profession or
business relates to the administration of
public justice, in order to influence his behaviour, and to incline
him to act contrary to his duty and the known rules of honesty and
integrity. The term “bribery” now extends further, and includes the
offense of giving a bribe to many other classes of officers; it
applies both to the actor and receiver, and extends to voters,
cabinet ministers, governors, presidents, legislators, sheriffs,
and other classes.[viii]^[3][4]

MEANING OF CORRUPTION:

We would simply refer to the definition offered by
Black’s Law Dictionary: “the act of an official or
fiduciary person who unlawfully and
wrongfully uses his station or character to procure some benefit
for himself or for another person, contrary to duty and the rights
of others.”[ix]^[5]

DEFINITIONS FROM SOME STATUTES:

We now turn our attention to provisions of some of our criminal
laws on the meaning of the words, “bribery,” bribe,” and
“corruption.” In this respect, the Criminal Law of
Lagos State (2011)[x] is relevant in that the Law
contains copious provisions dealing with the following offences:
“offering gratification to a public
official;” “acceptance of gift by agents
etc.;” “extortion by public officers;’ etc. First,
the Law describes a “public official’’ as “any person employed
in the public service or any judicial officer or any public officer
as defined in the Constitution of the Federal Republic of
Nigeria.”[xi] Any public official who
asks for, solicits, accepts, agrees, or attempts to receive or
obtain directly or indirectly any property or benefit of any kind
for himself or another person or entity or receives or obtains any
property or benefit of any kind for himself or any other person or
agrees or attempts to receive or obtain any property or benefit of
any kind for himself or any other person, on account of any past,
present or future favour or dis-favour or omission shown to any
person, by the such public officer in the discharge of his official
duties or in relation to any matter connected with the functions,
affairs or business of a Government department, public body or
other organization or institution in which he is serving as a
public official, is guilty of a felony and is liable to
imprisonment for seven years. This provision covers instances where
such property or benefit was received by the public or by some
other person at the instance of the public officer from any person
or at the instance of any person having or seeking to have any
transaction with the public official or with any institution or
department in which the public official is employed.[xii]^[6]

Once it is [xiii]shown that the
public official received, or demanded any such benefit, property or
gratification, it is immaterial that the affected public official
did not subsequently do, make or show the act, omission, favour or
disfavour in question or never intended to do, make or show it. In
a similar vein, any person who intentionally promises, offers,
gives or attempts to offer or give to a public official directly or
indirectly any property or benefit of any kind for the official
himself or herself or another person or entity, in order that he or
she acts or refrains from acting in the exercise of his official
duties is guilty of an offence. Finally, any public officer who
takes or accepts from any person, for the performance of his duty
any reward beyond his emoluments or any promise of such reward, is
guilty of a felony. There are other Federal and State enactments in
Nigeria that criminalize corruption, undue gratification, unjust
enrichment and abuse office by public officers.[xiv]^[7][8]

However, the one thread that runs through the cited laws is
that, for a public official to be said to have committed the
offence of bribe-taking or corrupt enrichment, the affected public
official must have asked for, solicited, demanded, received or
taken the said money, gratification, property or benefit
for himself personally or for the personal benefit of some
other person — that is, for his personal benefit or for
the benefit of that other. It appears however that the peculiar
circumstances of each particular case are the major determinants of
the existence or extent of criminal responsibility, as the case may
be.

From the discussion above, the following similarities may be
made out between a kickback and a bribe:

SIMILARITIES BETWEEN “BRIBE” AND
“KICKBACK”                   

• Each is illegal, and a form of corruption;
• In each case, both the giver and the taker are equally guilty
  of the offence;
• Each may be unsolicited, which is immaterial; so, if you
  receive without asking, you are guilty. If you give without being
  asked to, the same;
• In each case, the purpose is to improperly influence the
  (official) behaviour of the taker or someone else or to procure
  some undue advantage;
• Each may take the form of money or other considerations;
• In each case, it is immaterial that the affected public
  official is not influenced or that the affected public official did
  not subsequently do, make or show the act, omission, favour or
  disfavour in question or never intended to do, make or show
  it;
• It is immaterial that it is given or received by proxy;
• The offence is complete once any one of the following happens:
  if a person asks for, solicits, accepts, agrees, or attempts to
  receive or obtain directly or indirectly; and
• It is immaterial that the offender was set-up or framed up,
  provided that the ingredients named above are present.

If these similarities are anything to go by, then one may safely
conclude that there is little or no difference between a kickback
and a bribe. Indeed, our investigations have revealed that
“kickback” is just a form of nickname for “bribe” or “bribery,” a
word or trick employed in order to make bribe and bribery appear
“normal,” “harmless,” and as such difficult to detect or punish. It
is respectfully submitted that the practice of offering and taking
kickbacks is a form of corrupt enrichment, because kickbacks derail
due process, impede merit, destroy transparency and promote
inefficiency and incompetence. The truth is, when offering and
having “kickbacks” become a rule in the process of award of
official contracts, it becomes difficult to ignore tenders
submitted by contractors from whom kickbacks freely flow, as
opposed to contract bids coming from those from whose bosom no
kickbacks are forthcoming, even if the latter class is more
qualified for the job than the former. As long as bribes continue
to disguise as kickbacks in order to remain “rampant in every
level of government, from federal up to the local government level”
as “nothing new,” so long would corruption, ineptitude and
quackery pervade society, pollute governance and hinder genuine
socio-economic progress. Accordingly, efforts to curb bribery and
corruption in governance must start by kicking back these
“kickbacks” that are seen as “normal” but which are normally at the
root of much of baseness in the process of award of contracts,
employment, distribution of government policies, amenities and
infrastructural facilities.

What is more? One does not need atomic bombs to devastate and
destroy a nation; all that are necessary for this purpose are
politicians who value their pockets more than the lives of
citizens.[xv] The statement by the honest Kano
Sate Commissioner to the effect that “kickbacks” are normal and
happen at every level of government/governance in Nigeria somehow
corroborates to the words of Mokokoma
Mokhonoana[xvi]
that “98% of politicians are either corrupt or
corruptible.” We must teach our politicians to reject gain
from extortion, bribery, unrighteous grafts as something utterly
abhorring.” It is not every gift that must you stretch
your hands to take! Sometimes, just put your hands by your side and
humbly and courageously say thank you. The quest to sin always
knocks at the door of the heart, but behold! You have the right and
will to open your door or never to mind the knocks, no matter how
intense it is![xvii] Dear
Nigerians, whether we call them “bribes,” “payoffs,”
“kickbacks,” or whatever, it is high time we understood
that people, efficiency, merit, and due process, not
money, are the focal points of responsible leaders and
open governments. We all, jointly and severally, ought to open our
eyes to the fact that kickbacks are
kicking our nation and it progress so pervasively
and ferociously that unless we kick-start or
kick off a pattern of constantly
kicking our leaders in the pants with a view to
encouraging them to begin to kick bribe and
kickbacks to the curb, the menace
of kickbacks might sooner than later cause our
fledgling democracy to kick the bucket.
God forbid!^[9][10]

Respectfully,

SYLVESTER UDEMEZUE (udems)

(udemsyl@hotmail.com)^[11]

END NOTES

[i] See https://www.concisenews.global/2018/10/17/kickbacks-normal-in-govt-commissioner-defends-ganduje-bribery-video/^[12];
https://www.latestnigeriannews.com/news/6420286/kano-commissioner-admits-ganduje-received-bribe.html;
https://dailynigerian.com/kano-commissioner-admits-ganduje-received-bribe-says-kickbacks-normal-in-govt/^[13] (accessed 22 October
2018)

[ii] See https://dictionary.cambridge.org/dictionary/english/kickback^[14] (accessed 22 October
2018)

[iii]^[15] See https://www.ldoceonline.com/dictionary/kickback^[16] (accessed 22 October
2018)

[iv] See https://en.oxforddictionaries.com/definition/kickback^[17] (accessed 22 October
2018)

[v] See https://thelawdictionary.org/kickback/^[18] (accessed 22 October
2018)

[vi] See https://www.oxfordlearnersdictionaries.com/definition/english/bribe_1^[19] (accessed 22 October
2018_

[vii]^[20] See https://thelawdictionary.org/bribe/^[21] (accessed 22 October
2018)

[viii]^[22] (https://thelawdictionary.org/bribery/)^[23]. See also Hall v.
Marshall, 80 Ky. 552; Walsh v. People, 05 111.

05, 16 Am. Rep. 509; Com. v. Murray, 135 Mass. 530; Hutchinson
v. State, 36 Tex. 294.

[ix] See https://thelawdictionary.org/corruption/^[24] (accessed 22 October
2018)

[x] Laws of Lagos State, 2015

[xi] Criminal Law of Lagos State (2011),
section 67.

[xii]^[25] Op. Cit.,
sections 63, 64, 65 and 68.

[xiii] Ibid.^[26]

[xiv]^[27] These include the
Economic & Financial Crimes Act (EFCC Act), as amended;
The Corrupt Practices and Related
Offences Act 2000. 2000 Act No
5. Laws of the Federation
of Nigeria (ICPC Act); Money Laundering (Prohibition)
Act, 2011 (as amended); the Penal Code (Northern States) Federal
Provisions Act, applicable to Northern Nigeria; and the Criminal
Code Law of the various state of the Federation.

[xv] Ayivor, Israelmore. (2015). Leaders’
Ladder: Leadership Ideas from Successful Global Leaders. North
Charleston: Createspace Publishing Company.

[xvi]^[28] See
https://www.goodreads.com/quotes/9081300-98-of-politicians-are-either-corrupt-or-corruptible

[xvii]^[29] Attributed to Ernest
Agyemang Yeboah of the University of Education, Winneba, Ghana,

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