MAINSTREAMING HUMAN RIGHTS INTO ANTI-CORRUPTION: A STRATEGY FOR PROTECTING VULNERABLE GROUPS IN NIGERIA FROM DOUBLE JEOPARDY



                                        Introduction
Several scholars have singled out corruption as the bane of the Nigerian society. Indeed, owing to this horrible menace, the country has lost billions of money that could have been utilized for productive development, including: provision of adequate health care, education, jobs, security, good roads, pipe-borne water, and other basic infrastructures. Though, these developmental costs of corruption have been analyzed, and have been the subject of numerous writings, the human rights implications of graft are yet to generate similar fascination among scholars. Often absent from mainstream corruption analysis are human rights concerns; in particular, how corruption disproportionately affects the rights of the poor and vulnerable. This paper explores the problem of corruption and the challenge it poses to the protection of the fundamental human rights of vulnerable persons in Nigeria.


The paper alludes to the idea that stemming corruption requires a holistic and multi-dimensional approach, where various groups in the society work in a concerted and coordinated manner to combat the menace. However, it goes further to advance that a human rights based-approach will enhance the protection of vulnerable groups and individuals from double violation, while in the same vein, open up leeway for multiple systems of accountability, transparency, participation and effective oversight, all of which are important tools for a successful and sustainable anti-corruption campaign.


This work draws inspirations from research papers commissioned by the International Council on Human Rights Policy (ICHRP), and other available literatures on the discourse of corruption and Human rights. First, the paper briefly examines the conceptual links between corruption and human rights, and highlights the constitutional foundation of anticorruption regimes in Nigeria.   Second, it examines the disproportionate impact of corruption on rights of vulnerable people. Third, illustrates how human rights principles and instruments can play a pivotal role in ensuring an effective anti-corruption campaign. At the end, it shows that denouncing corruption is in the individual and collective interest of all Nigerians.

1. What is Corruption?

There is no universally acceptable definition of corruption. It is not simply an economic, political, social or moral issue; it encompasses and diffuses across all of these lines. Heidenheimer et al (1989), note that, in ancient time, political theorists such as Aristotle regard corruption as being primarily a moral issue, where corruption was used in the analysis of the structures and function of society to characterise situations that were perceived to be “marked by decay of moral and political order.”[1] Aristotle’s idea of a healthy political system involves proper administration of justice, non-materialism in economic matters, diversity and unity, higher guiding values of public interest over private values, and notions of citizenship.[2]

Modern scholars like Susan Rose-Ackerman points that corruption is not just an economic problem, it also intertwine with politics, and that reform will require changes both in constitutional structure and the underlying relationship of the market and the state ( Rose-Ackerman; 1999). Friedrich in his own case viewed corruption as “a disease of body politic”, a degeneration and disintegration of the political system (Friedrich in Heidenheimer, et al.; 1989). Corruption as viewed here goes beyond simplistic issues of economic impropriety by individual but captures a deeper malady in the society. Friedrich notes that this broader historic notion of corruption has developed into the modern understanding of corruption – the abuse of public power for private gain[3], a definition now adopted by Transparency International.  This paper adopts similar definition of corruption as an abuse of public power, office or authority for private benefit – through bribery, extortion, influence peddling, nepotism, fraud, speed money, or embezzlement.

1b.   Types of Corruption

Corruption is generally classified under three broad headings - grand corruption, petty/ bureaucratic corruption, and state capture.

1.      Grand Corruption: This covers thefts, misappropriation or diversion of vast amount of public resources by state officials-usually members of, or associated with, the political or administrative elite. An example is the embezzlement and money laundering of £1.8 million ($ 3.2 m) by Mr. Deprieye Alamieyeseigha, former governor of Bayelsa State, Nigeria. This type of corruption suck dry public treasury, with little or nothing left to meet basic needs of common people.

2.      Petty Corruption: This involves corrupt acts of isolated transaction by individuals, especially low-ranking public officials.  Examples of petty corruption include; slow movement of files in offices, police extortion at checkpoints, kickbacks paid to public water supplier,  and so on. This type of corruption increase costs for obtaining certain services, while depriving citizens, unable to afford the extra cost, of the benefit of enjoying such services.[4]

3.      State Capture: The collision by private actors with public officials or politicians for their mutual, private benefit is referred to as state capture. That is, private groups “capture” state apparatus – legislative, executive and judiciary for its own purposes,[5] by controlling, manipulating and using state machineries as financial conduit for personal enrichment.

1c.     Nigeria’s Corruption Tale

The three forms of corruption (Grand, Petty, and State Capture) manifest easily in Nigeria. To be precise, corruption assumes a normal pattern of life in Nigeria, it is more or less a way of getting “everything” done; – getting electoral positions, obtaining national passports, reconnecting broken electricity supply, accessing water supply, obtaining a bed-space at public hospitals, and so on. Indeed, corruption has penetrated and eroded hitherto sacred aspects of the Nigerian society, such as judiciary, universities and faith-based organizations. Transparency International has enlisted some of the factors stated below as causes of corruption in Nigeria.

Endemic corruption in Nigeria is attributable to several factors, such as:

·        Prolonged military rule and the culture of impunity, which became institutionalised.
·        Absence of commitment on the part of government to fight corruption evidenced by the “sacred cow syndrome”, as well as failure to investigate and prosecute glaring cases of corruption.
·        Weak anti-corruption and watchdog agencies and other enforcement mechanisms
·        Inadequate legal framework, with the absence of freedom of information and whistle blowers’ legislation.
·        The role of tribalism/ethnicity and religion in national politics. Ethnicity and religion breed divisive tendencies, making it difficult to nurture true cohesion and to build resistance against corruption within the polity.
·        Elastic tolerance for corruption fostered by negative socio-cultural norms and attitudes towards public property that were nourished under colonialism
·        Distortion of the African principle of hospitality and exchange of gifts.
·        Poverty and the dearth of basic public services, infrastructure and utilities, leading to the denial of a platform for self-actualization due to the corrupt diversion of the nation’s resources.
·        Mismanagement of oil resources evidenced by the ostentatious life styles and flaunting of wealth by the political elite and their apologists.

2. Foundations of Anti-corruption fight in Nigeria

Although corruption is criminalized in many countries of the world, the word itself is not unequivocally defined as a crime in a strict legal sense; it is often linked with other criminal acts involving the illegal abuse of power. Similarly, international conventions such as the United Nations Convention Against Corruption (UNCAC) and the African Union Convention on Preventing and Combating Corruption, do not define corruption, but rather enumerate criminal acts which amount to corruption. However, a strict meaning of corruption can be deduced from the Southern African Development Community Protocol against Corruption (SADCPC), which provides a broad legal scope of corruption and criminalises it.  In its Article 3, SADCPC, regards ‘corruption’ as any of the acts enumerated therein, including bribery or any other behaviour in relation to persons entrusted with responsibilities in the public and private sector which violates their duties as public officials, private employees, independent agents or other relationships of that kind aimed at obtaining undue advantage of any kind for themselves[6]

Nigeria’s anti-corruption regime is influenced by various international documents including; UNCAC[7], AU Convention on Preventing and Combating Corruption [8] including the ECOWAS Protocol on the Fight against Corruption[9].  All of these documents acknowledge that a comprehensive and multidisciplinary approach is required to prevent and combat corruption effectively. Specifically, the ECOWAS Protocol, oblige State parties to adopt necessary legislative measures to criminalise active and passive bribery in the public and private sectors; illicit enrichment, false accounting, laundering of the proceeds of corruption; as well as acts of aiding and abetting corrupt practices; and to ensure the protection of victims. The Protocol further call upon State parties to harmonize their national anti-corruption laws, to adopt preventive measures against corruption and to introduce proportionate and dissuasive sanctions.

Nigeria’s establishment of law enforcement bodies like the Independent Corrupt Practices Commission (ICPC) and Economic Financial Crimes Commission (EFCC) are in consonance with recent international processes. Prior to the creation of these two Commissions, the available anti-corruption wand was the 1999 constitution. The constitution, unfortunately, contains only a few anticorruption clauses, outlined under sections E - powers and control over public funds, and nature of obligation of Auditor-General’s office. Furthermore, sections 225 and 226 stipulate transparency requirements in the financing of political parties.  

The constitutive Act of the ICPC, EFCC and other allied Acts[10] enacted by the National Assembly of the Federal Republic of Nigeria, constitute till date, the enabling laws available to combat corruption in the country. The EFCC Act has been hailed a robust legislation covering a wide range of subjects such as legislative measures to detect, investigate and prosecute graft. Almost all financial and related crimes are subjected under its jurisdiction including; advanced fee fraud, money laundering, counterfeiting, illegal transfer, computer credit card fraud, contract scam, offences related to terrorism and so on.  

The anti-corruption tradition in Nigeria, however, dates far back before the establishment of ICPC and EFCC by the Obasanjo Administration (May 1999 – April 2007). Each successive government since the late 1970s has had their own planned strategy on how to eradicate corruption in Nigeria, though, a major issue brought to question was their sincerity and unflinching commitment to the anti-corruption war. The General Yakubu Gowon Administration made its own Anti-corruption Declaration in October 1970 but it was marked with quantum failure. The Murtala Mohammed regime, 29 July 1975 – February 1976, instituted investigations and enforced disciplinary measures against erring public officers, this also did not achieve much, even though some successes were recorded, in form of indicting corrupt officials from the previous administration.  Then the Jaji Declaration of 1977 by General Olusegun Obasanjo which forbade government officials from riding any exotic car other than Peugeot 504 brand. In 1982, Shehu Shagari flouted his own anti-corruption campaign tagged Ethical Revolution, but this program, like the rest did not withstand the test of time and sincerity.

The only significant anti-corruption crusade, prior to the creation of EFCC, was the War Against Indiscipline (WAI) launched by the Buhari / Idiagbon regime, 31 December 1983 –August 1985.  The (WAI) program was a progressive move to curb corruption and other manifestations of indiscipline in Nigeria. Various tribunals both at the federal and state level were also set up to probe political actors of the Second Republic. The campaign was deemed successful, because Nigerians embraced the reforms introduced by the government, some of which include; a queuing culture, environmental sanitation and observance of traffic regulations. A negative outcome of the disciplinary measure taken, was the fact that, it implementation was marked by series of human rights abuses;[11]people where flogged for jumping queues in petrol station or in banks, and decree 4 was enacted to punish journalists for writing things found to be offensive to the government. The WAI program was short-lived; it faded almost immediately after the departure of the duo from the helm of government.

With the advent of the Babangida Administration, from 27 August 1985 – 26 August 1993, it was corruption galore in Nigeria, as emphasis on sanctions and recovery of ill-gotten loot was substantially reduced. The administration did not show any commitment to the anti-corruption drive of its predecessors, rather it plunged the Nigerian society into eight years of kleptocratic rule characterised by corrupt practices of different shades.[12] The Abacha administration that took over from the interim National Government of Ernest Shonekon, followed the pace set by the Babangida Administration in looting government treasury. A total sum of N63.25billion was said to have been recovered from the Abacha family.[13] The ex-chairman of the Economic Financial Crimes Commission, Mallam Nuhu Ribadu, averred that more than $380billion has either been stolen or squandered by Nigerian governments between 1960 and 1999, monies that could have been utilized for purpose driven development. Despite all vitriolic darts hurled at EFCC by politicians and the press, it would be fair to adduce that until its emergence in 2003, societal tolerance for corruption in past years, especially under the Babangida regime, was shamefully appalling. Indeed none of the previous efforts to stem corruption can make bold of even scratching the surface of the deep-rooted problem.

However, recent anticorruption efforts in Nigeria are also fraught with many problems. One major problem is that Nigeria’s anti-corruption crusade is largely enforcement and prosecution based (i.e. detection, investigation and adjudication of cases), with very little effort put into strengthening preventive strategies which has the most value in protecting weak and vulnerable groups. More so, some of measures taken to combat corruption where not always compatible with human rights principles, and rarely was the mutual benefiting links between anti-corruption and protection of human rights explored by Nigeria’s anti-corruption agencies.

Indeed, the nexus between corruption and human rights is only just emerging in national and international discourse. It is still an area of on-going research aimed at laying a foundation for the construction of a corrupt-free society; society where respect, protection and fulfilment of human rights are primary concerns of leaders and followers alike. Before elaborating on the links between anti-corruption and human rights, it is helpful to analyse what human rights are, its basic principles and available mechanisms for their protection. 

3.   What are Human Rights?  
Fundamental human rights are rights available to every person for the simple reason of being human. Human rights have been regarded has inherent (applying as result of person’s humanity), inalienable (i.e. cannot be taken away or given away) and universal (applying to all persons regardless of race, nationality, status, sex, religious, beliefs e.tc). These rights are spelt out in what is regarded as the international bill of rights ; the Universal Declaration of Human Rights (UDHR), the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights ( ICESCR).
Rights outlined in the ICCPR include; right to life, right to self-determination, right to freedom of association, right to freedom of religion, right to freedom of information, right to freedom of movement, right to vote, right to fair trial and so on. ICESCR contain rights in the socio-economic sphere such as right to education, right to health, right to just and favourable condition of work, right to food, right to shelter, right to housing and others. Rights provided in ICCPR and ICESCR are binding on member states and they are expected to respect, protect and fulfil the provision of each covenant at the national level.  Having these rights in two separate covenants should not be interpreted as creating hierarchy of rights, nor does it imply a rigid dichotomy amongst human rights. In practice, one set of human rights cannot be meaningfully protected in isolation of the other. For example, protection of civil and political rights usually feed into expanding prospects for the realisation of economic and social right, and vice versa. The 1993 Vienna Declaration and Program of Action have reiterated the indivisibility, interrelatedness and independence of all human rights. This is the approach adopted in this paper. 

Human rights have acquired special position in the contemporary world because of the increasing tendency of national governments to include these rights in their respective constitutions as well as laws. Nigeria, a party[14] to ICCPR and ICESCR, gave varying constitutional recognition to each category of rights. Civil and political rights are expressly guaranteed under Chapter IV[15] of the 1999 constitution, whereas, economic and social rights instead of sharing same chapter with civil and political right, are to be found in chapter II, under the rubric of fundamental objectives and directives principles of state policy; meaning moral rules lacking enforceability.[16]
To have right to a certain object (A), means someone else has a corresponding duty to ensure the realization of (A). In other words, rights are claims person(s) have on individuals, collectivities, governments, and the design of social arrangements.[17]  States are the primary duty bearer of human rights, it is commonly understood that states have three levels of obligation in relation to human rights: obligation to “respect”, “to protect” and “to fulfil”.
The obligation to respect: requires the state to refrain from any measure that may deprive individuals of the enjoyment of their rights or their ability to satisfy those rights by their efforts. This type of obligation is often associated with civil and political rights (e.g. refraining from committing torture) but it also applies to economic, social and cultural rights too. With regard to the right to adequate housing, for example, states have a duty to refrain from arbitrary eviction.
The obligation to protect: requires the state to prevent violations of human rights by third parties. This obligation is normally taken to be a central function of States to prevent irreparable harm from being inflicted upon members of society. This requires States: (a) to prevent violations of rights by individuals or other non-state actors; (b) to avoid and eliminate incentives to violate rights by third parties: and (c) to provide legal remedies when violations have occurred, in order to prevent further deprivation.
Obligation to fulfil:  requires  States to take measures to ensure that people under its jurisdiction can satisfy basic needs (as recognised in human rights instruments) that, they cannot secure by their own efforts. Although this is the key state obligation in relation to economic, social and cultural rights, the duty to fulfil also arises in respect to civil and political rights. It is clear, for instance, that enforcing the prohibition of torture (which requires police training and preventive measures), or providing the rights to a fair trial (which requires investment in courts and judges), to free and fair elections, and to legal assistance, all require considerable costs and investments.
The trajectory of human rights protection and fulfilment in Nigeria has been one of constant struggle marked with trepidation and agony, especially under the military era. The dictatorial period of military rule in Nigeria was marked with impunity for human rights abuses. Activists and advocates of human rights were constantly repressed and stampeded by various forms of incriminating decrees and punitive measures. Rights such as freedom of information, freedom of expression and trade union rights, which helps in sanitising and holding accountable systems and institutions of governance were usually the first under attack. During the military period, standing for justice and human rights was an extremely daring venture which led to the loss of many lives. For example, the Ogoni leader, Ken Saro Wiwa, and his colleagues met their untimely demise, because they tried to hold the Abacha regime responsible for acts of corruption and human rights abuses perpetuated against the oil producing communities in Ogoniland.

It is true that human rights are violated daily for one reason or another, but more often than not, corruption stands as an inhibiting factor in the matrix of the complex hurdle to protect and fulfil human rights. Combating corruption may, therefore, translate into creating enabling atmosphere for human rights to flourish.

4.   Impacts of Corruption on Human Rights

It is commonly agreed, “Corruption violates human rights”. Several documents signed under the auspices of United Nations, and regional organisations have acknowledged the negative effects of corruption on human rights,[18] some international documents even considered corruption a “crime against humanity,” [19] while the UN treaty bodies and special procedures have commented   on the inability of states to comply with human rights obligations because of corruption.[20] These are broad statements and do not provide clear linkages between corruption and human rights. In his attempt to clarify the links between corruption and human rights, Julio Bacio-Terracino, drew up three categories. (I) Corruption as protecting human rights, (II) Corruption as leading to human rights violation and (III) corruption itself as a violation of human rights ( Baccio-Terracino, 2007).[21]   


a)      Corruption as protecting human rights: some scholars have argued that petty corruption are need-based, often occurring as a result of poverty. It was advanced that bribes demanded by police officers at checkpoint, and other administrative kickbacks serve to pragmatically safeguard fundamental human rights of underpaid officials. Though this view is unpopular, the Warioba Report on corruption study in Africa acknowledged that in many cases, those who ask for bribes do so because of their meagre incomes and low standard of living.[22] Examples are corrupt practices perpetrated by teachers who are underpaid or whose salaries have not been paid for months. For these individuals, the small bribes they receive serve to help make ends meet.[23] It  is important to note that grand corruption partly feeds into the upsurge of such incidences, where high-ranking public officials embezzle money meant for their subordinates.  A classical example is the Tafa Balogun Saga, Nigeria’s ex-inspector General of Police who embezzled more than 70% of the entire federal police salary.

b)     Corruption leading to human rights violation: It is necessary to distinguish corrupt practices that directly violate a particular human right, from corrupt practices that lead to violation of a human right (but do not themselves violate a right), from corrupt practices where a causal link with a specific violation of rights cannot practically be established). Corruption may directly or indirectly lead to a violation of human right, when the basic tenets of human rights (such as the cardinal principle of equality and non-discrimination) are not given proper expression in a given situation.  For instance, in a country where access to public education is supposedly free, demands for bribes by school Admission Committee, before enrolling deserving students violates the right to education of those students. In this case principle of non-discrimination and equality are flouted for material gains. In other words, it is not the demand for bribe per say that violate human rights but because such an act will potentially influence the bribe taker to undermine principles of non-discrimination, equality, justice and due process in awarding of admission. The aforementioned principles must not be jeopardised on the altar of nepotism, favouritism, or material inducement, in the event that such happens, then, there is a violation of human rights. The table below illustrates a diagrammatic relationship between corruption and violation of human rights violation. 

Act of Corruption
( UNCAC)

Examples
Potential
Human Rights Violation
Potential Victim(s) 
Party responsible 
Potential
Harm
Bribery
UNCAC
( Article 15)




Bribery of public official by a wealthy contractor to obtain a licence for construction of road project without following proper bidding procedures
Right to non-discrimination and equality
(Art 2(1) ICCPR)
Other eligible contractors
Public official and complicit contractor
Breakdown of due process, increasing “clientelism”. 
Bribery
UNCAC
(Article 15)



Bribery of public official to allow the illegal importation and dumping of toxic waste in an area planned for future residential use
Right to Life
(Art 6 ICCPR)
Citizens
Public official and foreign company
Exposure to radio-activity which is a known cause of cancer and genetic defects
Bribery
UCAC
(Article 15)

Bribery of immigration officer to allow the trafficking and hostage taking of young girls as sex workers 
Right to freedom from slavery or servitude
( Art 8 ICCPR)

Girls held in hostage
Immigrations officer, traffickers, sex peddlers
Denial of liberty and dignity, exposure to sexually transmitted diseases, and  possible death
Embezzlement by Public official
UNCAC
( Article 17)
Embezzlement of funds destined for financing prison service
Right to dignified and humane treatment 
(Art 10 ICCPR)


Prisoners
Prison administrator & his cohorts
Inhuman and undignified treatment due to lack of food or shortage of basic resources  
Bribery
UNCAC
( Article 15)

Police or military officers demanding bribe at checkpoint before passing   vehicles
Right to freedom of movement
( Art 12 ICCPR)


Populace
Police officers, traffic warders, military personnel
Traffic delays, sometimes physical abuse of persons refusing to pay bribe
Bribery
UNCAC
( Article 15)


Plaintiff offering bribe to a judge to obtain favorable ruling in a lawsuit

v  Right to  fair trial (Art 14 ICCPR)

v  Right to non-discrimination (Art 2 ICCPR) 
Defendant




Judges, court staffs
 
Unfair trial , denial of right to justice and effective remedy
Bribery
UNCAC (Article 15) 



Private company offering bribe to  public official to take possession of  family land site or shelter of minority group, or urban slum dwellers
v  Right to privacy, and family life
(Art 17 ICCPR)

v  Right to adequate housing (Art 11 ICESCR)

v  Rights of Indigenous peoples
( ILO 169)
Minority groups, urban slum dwellers
Public official, CEO of private company
Arbitrary  eviction  & Dispossession, denial of right to adequate shelter, and  denial of enjoyment of  family heritage








Bribery
UNCAC
( Article 15)
Public official demanding bribe before awarding state registration  cards to  religious group
Freedom of religion
( Art 18 ICCPR)
Members of  religious group
Public official
Potential threat to freedom of religion if followers are unable to gather without state licence
Abuse of Functions
UNCAC
( Article 18)



Bribery of Journalists to cover up or misrepresent stories of fraud committed by public officials
Right to freedom of expression and  Right to information
( Art 19 ICCPR)
Citizens
Journalist involved & Public officials
Deception of public and illegal control of right to information
Abuse of Function
UNCAC
( Article 18)

Bribery of Police by public officer to disrupt peaceful protest  against fuel hike
Right to Peaceful Assembly
( Art 21 ICCPR)
Protesters
Police & Public official
Denial of the right to organize and express group opinion
Bribery in private sector
UNCAC
( Article 21)
Bribery of workers/ employees to withdraw from trade union
group

Right to Freedom of Association
(Art 22 ICCPR)
( Art 8(1)ICESCR)

Employees


Anti-unionists CEOs & complicit employees
Undermining the force and unity of trade unions
Trading in influence UNCAC
( Article 19)

Buying of voters and rigging of election by incumbent public office holders
Right to participation
( Art 25 ICCPR)
Citizens
Political candidates & public officials
Denial of free and true participation in political & governance process
Bribery
UNCAC
(Article 15)


Bribery of police officer to harass and beat up political dissents
Right to Equal protection of the law (Art 26 ICCPR)
Political dissents
High ranking public official, police officer
Denial of  protection and security offered under international law and national constitutional  guarantees
Bribery of national public official 
UNCAC
(Article 15 )
When multinationals bribe public officials to obtain multibillion contract for the construction of oil grid on indigenous people’s land.
Right to self-determination
(Art 1  ICESCR)

Indigenous people
Multinational company, public official  
Denial of right to freely determine, enjoy and utilize natural wealth.  deprivation of owned subsistence

Bribery
UNCAC
( Article 15)


Demand for sexual favour by public official from female employees
Equal right of Men and Women
( Art 3 ICESCR)
Female employees
Public official,
Intimidation, harassment, including arbitrary dismal of unyielding female workers.
Embezzlement in  Private Sector
UNCAC
( Article 22)
Stealing of shareholders money and bankrupting of company
Right to work
(Art 6  ICESCR)
Employees
CEO of Company
Arbitrary dismal of workers, payment of insufficient salary to workers.

Bribery
UNCAC
(Article 15)
 Bribery of labour inspector by an employer to  prevent proper enforcement of labour laws and guidelines
Right to favorable condition of work
( Art 7 ICESCR)

Employees
Employer, Labour inspector 
Poor working condition, unreasonable working hours, low remuneration e.t.c


Bribery
UNCAC
( Article 15) 
Bribery of food safety agencies to obtain licence
without following standard food production guidelines
Right to Food

(Art 11 ICESCR)



Citizens

Public official, private business owner
Unsafe food supply, consumption of tainted or poisonous food.


Embezzlement
UNCAC
(Article 17)
Embezzlement of pension funds by government officials
Right to social security including social insurance (Article 9 ICESCR)

Pensioners
Public official
Insufficient funds for living, little or no funds to cover basic expenses, denial of retirement benefits
Bribery
UNCAC
(Article 15) 
Offering illegal payment to  water corporation authority to exceed water extraction permit
Right to water
(Art 11 & 12 ICESCR) 
Neighbouring communities, citizens.
Public official, CEO of private company
shortage of water to neighbouring communities,
Water pollution

Misappropriation

UNCAC
( Article 17)
The illegal sale or diversion of HIV medicines from public hospitals to private practice by doctors and health officers
v  Right to Health (Art 12 ICESCR) 

v  Right to Non-discrimination(Art (2) 1 ICESCR)
Persons living with HIV/AIDS


Doctors, hospital officials & complicity officers in  Ministry of health.
Reduction in drug availability, poor and discriminatory service by health officials.
Bribery
UNCAC
(Article 15) 
Request for bribe by lecturers before awarding university admission or good grades to students
v  Right to Education (Article 13 ICESCR

v  Right to Non-discrimination
     (Art (2)1  
      ICESCR)
Students
Lecturers
Discrimination based on monetary status. Jeopardy of value of merit, substandard education. 

Bribery
UNCAC (Article 15)

Illegal payment to a judges or orphanage owner to speed up or manipulate the adoption of a child without following stipulated rules
v  Best interest of  child
   ( Article 3 CRC)

v  Best interest of Child in Adoption
      ( Article 21   
      CRC) 
Adopted child


Judges, foster parents, orphanage owners
Loss of family lineage, ethnic roots, and medical history

Acts of Corruption and Violation of Human Rights (Diagram 1)


Acts of Corruption and Violation of Human Rights (Diagram 1)

c)      Corruption itself as a violation of human rights: States party to human rights conventions have an obligation to respect, protect and fulfil the provisions contained therein. They are under a legal duty to ensure that rights of identifiable individuals or group of individuals under their jurisdiction are not compromised. Leaders at the three-tier of government – local, State and federal, are the custodian of commonwealth of the society and ideally meant to disburse national resources for the greater good of all and not for the few. Where public officials divert public fund towards private ends, either by acts of commission or omission, they violate human rights, also violate the right to a “corruption free society”[24] a component of the right to economic self-determination and the right to development of a people. [25] It may be argued that right to corruption-free society originates and flows from right of people to exercise permanent sovereignty over their national resources and wealth, that is, their right to economic-self determination, recognised in common article 1 of ICCPR and ICESCR ( Ndiva Kofele-Kale, 2000). Hence, a state[26] will be in violation of these rights when it transfers, in a corrupt manner, the ownership of national wealth to a select few, resulting in a situation where people are denied individually and collectively their rights to use freely exploit and dispose of their national wealth in a manner that advances their development.  Human rights can also be violated through distortion of government expenditure; where large-scale capital intensive projects which provide more opportunities for corrupt behaviour, may be preferred and approved by corrupt public officials, rather than labour intensive projects that provide work, or allow spending  on essential public services ( e.g. health care) that may benefit the poor. (Jayawickrama, 1998).

The quest for a corrupt free society is link to the Declaration on the Right to Development. The Declaration, which stated unequivocally that the right to development is a human right, was adopted by the U.N in 1986 by an overwhelming majority, with the United States casting the single dissenting vote. The Declaration has four main propositions; 1. The right to development is a human right; 2. The human right to development is a right to a particular process of development in which all human right and fundamental freedoms can be carefully realised; 3. The meaning of exercising these rights consistently with freedom implies free, effective, and full participation of all the individuals concerned in decision making and in the process of implementation which therefore must be transparent; and individuals must have equal opportunity of access to resources for development and receive a fair distribution of the benefits of development ( and income); and finally; 4. The right confers an unequivocal obligation on duty-holders- individuals within the community, states at the national level, and states at the international level.  Other states and international agencies have the obligation to cooperate with States to facilitate the realisation of the process of development. “It is in this context that the fundamental right to a corruption-free society adds a new and necessary dimension to the right to development. No development process will have any meaning and relevance if corruption as an institutionalised process interferes with people’s struggles to realise their right to development.”[27]

It is important to briefly mention that, while corruption is said to violate human rights,  anti-corruption strategies employed in Nigeria, have also come under fire on account of similar charges. Law enforcement agents have been guilty of using torture and other inhumane methods to apprehend criminal, obtain confessions and conviction. Another form of abuse is the naming and public shaming of suspect before obtaining legal convictions in a court of competent jurisdiction, such acts, damages the public reputation and right to personal integrity of person(s) involved.

Again, the politicization of anti-corruption war and use of anti-corruption crusade as a weapon of suppression by authoritative governments undermines public confidence in the campaign. “It is, therefore, pertinent to modify anti-corruption techniques to be compatible with human rights standards, such that, it will not be easily manipulated by ill-intentioned leaders, nor function in ways that adversely affect the rights of those involved including; perpetrators, witnesses, whistle-blowers and anti-corruption activists. Certain provisions of the United Nations Convention against Corruption address the question of fighting corruption while safeguarding human rights.”[28] This paper does not examine such issues.  

4b.     Corruption and Vulnerable Groups in Nigeria

Corruption as a crime affects the generality of a society, but disproportionately affected are vulnerable groups including; the poor, disabled, indigenous people, ethnic minorities, AIDS victims, and women.  Corruption affects the rights of the vulnerable, palpably due to an inability to pay bribes, but substantively through exacerbating inequalities and denial of access to justice.

Corruption has varying impact on different categories of disadvantaged groups, for example, in the case of HIV/AIDS victims, many of those living with the disease have testified to paying bribes to public health officer before securing access to anti-retroviral medications. In the case of pregnant women, reports have linked the rising toll of infant and maternal mortality in Nigeria to corruption in the health sector. Exorbitant bribes charged by public health officers discourages and prevents pregnant women from accessing necessary antenatal care at public hospitals, rather it has led many to seek the assistance of traditional midwives, even some case sought help from religious sister, who very often have little or no knowledge about childbirth.

In a country where corruption is a way of life, the poor and disadvantaged groups are often exposed to double violation, as their vulnerability makes them easy prey of corrupt individual and ready victim of systemic rot in public institutions.  Bribes demanded from people in their bid to access public services (in particular, health care, public housing, education, or law enforcement), such bribes are generally heavier on the purses of the poor, and sadly the latter have no recourse as they are unable to access the judiciary for remedial purposes since the judiciary itself is fraught with graft – from the lowest echelon of court clerk to the higher positions of judges. If,  institutions such as the judiciary are corrupt, or not, in a position to adequately respond to corruption, then the fundamental fabric of access to justice is undermined and so is the fate of the common man in the hands of corrupt officials.

It is unfortunate that, while grand corruption damages the quality of public services which many poor depend on to provide for their basic needs, petty corruption in similar ways, reduces the net income the poor has in meeting those needs by themselves. Independent of its different guise, corruption, clearly magnifies and exacerbates pre-existing human rights problems that vulnerable people face. Since corruption reinforces values which human rights seeks to reject (i.e discrimination, exclusion, inequality, and exploitation of the weak), logically, a counter attack on corruption will be to reinvigorate processes and strategies for protection of human rights.


5.  Adopting Human Rights Based Approach in Anti-Corruption

The fight against crime in any country starts with the setting up of necessary legislative framework to fight the crime. Given its nature and clandestine mode of operation, even the most carefully crafted law may not be sufficient to stem corruption,[29] Although, good legislative mechanism may assist in the detection, investigation and the prosecution of the crime, preventing and curbing it will, ultimately, require more than law enforcement.  

A human rights approach redefines the problem of corruption and suggests new solutions; it insists that the battle against corruption cannot be effective unless it includes people at the heart of the anti-corruption battle, particularly, those who suffer the most from its consequences. Institutional reforms only affect the opportunities and alternatives that corrupt officials have, but human rights based approach proposes generating reform “from below” by taking into account the vulnerability and participation of ordinary citizen in anti-corruption war.  

Rights-based approach in anti-corruption brings to bare a combination of social empowerment and social accountability strategies, where social empowerment means involving necessary stakeholders, including civil-society groups and interested citizens in national decision-making process and ensuring their meaningful participation in the implementation and outcome of set programs and national plans.  Under this framework, it is imperative to involve civil society members in the design of budget and revenue allocation, keep them informed of amount earmarked for various projects and allow them carry-out independent audits of each program at the end of target period. Social accountability on other hand, means the right to obtain justifications and explanations for the use of public resources from those entrusted with their management (whether government officials or private providers). Those responsible for the safeguard and disbursement of public resources have an obligation to explain and justify how their decisions and actions have contributed to the progressive realisation of citizens rights, and to take steps to correct ineffective use or abuse of resources. Social empowerment may therefore be described as a preventive strategy to corruption, and its twin-sister; social accountability, is a compliance technique, which may involve public prosecution of defaulters. 
The human rights framework of social empowerment and social accountability, shares similar motivation with key principles of anti-corruption; transparency,[30] answerability[31] and controllability[32], and it adds to the traditional accountability structure offered by human rights [33] - such that victims, violators and remedy for corruption can be easily identified. Reprimanding offenders and remedy for affected victim(s) is crucial in a human rights framework, as punishment serves as deterrence and a crush on impunity, while the remedial part upholds principle of reparation for violation of rights.  Under this framework, citizens are not merely passive supporters of anti-corruption reforms but active watchdogs holding public officials accountable and responsible for socio-economic progress including; eradication of poverty and fulfilment of human rights.   Ordinary people, thus, have the duty of voicing no tolerance for corruption through improved access to information and protection of political rights such as right to freedom of expression, right to assembly and association, and so on. These types of rights enhance participation efforts that are vital in combating corruption.  

There are several benefits of adopting a rights-based approach in anticorruption; one major benefit is that human rights instruments can also serve as additional mechanism to fight corruption, especially when acts of corruption are connected to violations of human rights. Indeed, corruption cases involving gross violation of human rights by public officials may be challenged and prosecuted using various human rights instruments. For example, the arbitrary eviction of people from their homes due to discriminatory and corrupt re-allocation of low-cost housing, from poor to the elite, violates the right to housing of the evictees (Article 11 of ICESCR). Hence, such as a case may be prosecuted through national, regional or even international human rights complaint procedures.[34] Furthermore, taking corruption cases before human rights supervisory bodies can give prominence to those cases, and may also force a state to take preventive action, or may deter corrupt officials from misusing their power.[35]

“Some corrupt practices that may not necessarily be illegal, and thus cannot be made subject to standard law enforcement, could be addressed using human rights forum. A corrupt practice that is not illegal may still result in a human rights violation and this may permit additional forms of action. For example, in many judicial systems nepotism or political favouritism are not considered to be corrupt in strictly legal terms, and are not prohibited by law. However, such practice may result in a violation of the rights of political participation and right to equal access to public service. In such cases, human rights education programs may provide a substantive path for reform that a strictly legal approach may not offer.”[36]

Rights-based approach in anti-corruption is not an entirely new idea. The success stories of Botswana and Hong Kong are replete with human rights elements- of transparency, participation, accountability, and independent and impartial judiciary. Botswana, often cited in literatures, as one of Africa’s country which has successfully suppressed the prevalence of corruption since the country’s independence in 1966, achieved the feat through relative openness in economic policy making, priority-setting and an independent judiciary.[37] Hong Kong’s anti-corruption success has been credited to Hong Kong’s Independent Commission against Corruption (ICAC) and to a multiply of other factors such as a clean government that guarantee political stability and sustained socio-economic development; and government facilitation of community support and involvement in the fight against corruption. If Nigeria must succeed in her anti-corruption war, then, she must embrace the key elements listed above.

Among other issues, rights-based approach in anticorruption must also take into account the following elements:

1.      Access to information is critical in combating corruption: Since corruption thrives on secrecy, it is not surprising that it flourishes in countries where laws granting access to information are weak or non-existent. For Nigeria to succeed in her anti-corruption war, she must embrace laws and policies that reduce secrecy in government and promote access to information and transparency, together with proactive publication on government’s resources allocation, expenditure and performance systems.

2.      Judicial independence should be promoted. The judiciary on its own part must work to counter the culture of impunity by corrupt officials and must remain impartial and fair in adjudication of corruption cases.

3.      Anti-corruption role models should be promoted: Anti-corruption agencies should work with influential individuals, who can serve as role models of integrity and symbol of moral forthrightness to promote positive image of national anti-corruption programs.

4.      Submission of petitions from individuals and corporate bodies should be encouraged. Citizens should be encouraged to report suspected or actual breaches of code of conduct, bribery, embezzlement, and illicit enrichment to the appropriate anti-corruption body.

5.      Transparency and accountability in political systems and institutions should be promoted.  Litigation is a good starting point for organisations that seeks to reduce the impact of corruption. For example, successful lawsuit against corrupt public officials may bring compensation for victims and establish legal precedence that can serve to deter other criminally minded individuals.

6.      Independence of anti-corruption institutions is another important element. This may include, giving considerable power to anti-corruption agencies to examine bank accounts and business records, seize assets and/or passports of culprits.   

Conclusion

Corruption is a complex problem, and solving it requires multiple of strategies. This paper does not propose human rights as the panacea to the problem of corruption; rather what is advocated is that, for Nigeria’s anti-corruption war to be effective, human rights principles must be mainstreamed into the country’s anti-corruption program. Indeed, such a strategy is likely to guarantee the protection of vulnerable groups from double violation, while in the same vein, provide leeway for multiple systems of accountability, transparency, and participation, all of which are important tools for a successful and sustainable anti-corruption campaign.

African Union Convention on Preventing and Combating Corruption

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Gavison Ruth, On the relationship between Civil and Political Rights, and Social and Economic Rights, in Jean-Marc Coicaud, Michael Doyle et al (eds) Globalisation of Human Rights, United Nations University Press, Tokyo Japan, (2003 )

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Heidenheimer, A.J.; Johnston, M.; and LeVine, V.T. (eds), Political Corruption: A Handbook. New Brunswick, N. J.: Transaction Publishers ( 1989). pp 848 -849

Hess, David & Dunfee, Thomas W., "Fighting Corruption: A Principled Approach," 33 Cornell International Law Journal 593 (2000).

Kofele-Kale Ndiva, "The Right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime under International Law," 34 International Lawyer 149 (2000).

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[1] Heidenheimer, Arnold J.; Michael Johnston, and Victor T. LeVine (eds.). 1989. Political Corruption: A Handbook. (New Brunswick, NJ: Transaction Press) pp 848
[2]  Euben in Ball et al.., 1989 p 227
[3] Friedrich in Heidenheimer, Arnold J.; Michael Johnston, and Victor T. LeVine (eds.). 1989. Political Corruption: A Handbook. (New Brunswick, NJ: Transaction Press) p 20
[4]Transparency International Country Study Report, National Integrity systems Nigeria 2004 p 12
[5] Anwar Shah and Mark Schacter, Combating Corruption : Look before you leap, Finance & Development Journal December 2004
[6] Southern African Development Community Protocol Against Corruption , Article 1
[7] Nigeria is among the 27 African countries that has ratified UNCAC, however the treaty is yet to be fully operative in national laws because for a treaty to be operational the National Assembly have to “domesticate”such treaty or convention ( section 12; 1999 Constitution). Intense advocacy by stakeholders is needed at this stage to bring the particular convention to the front burner. Treaties and Conventions signed by the country have been known to remain inactivated for up to ten years.  http://www.u4.no/helpdesk/helpdesk/queries/query115.pdf
[8] Nigeria has signed but yet to ratify AU convention against corruption. Nigeria signed the Convention on 16th of December 2003.  http://www.transparency.org/news_room/in_focus/2006/au_convention#countries
[9] The ECOWAS Protocol on the Fight against Corruption of the Economic Community of West African States was adopted with the objective of strengthening effective mechanisms to prevent, suppress and eradicate corruption in each of the States parties through cooperation between the States parties. It was signed on 21 December 2001 and has not yet entered into force.
[10] Other allied anti-corruption Acts includes; The Advance fee fraud and Other Related Offences Act 1995, The failed Banks ( Recovery of Debts) and Financial Malpractices in Banks Act, as amended; the Banks and Other Financial institutions Act 1991;The Money Laundering Act 2004; 2003, the Criminal Procedure Act, the NDLEA Act and the Custom and Exercise Act 1990 laws of the federation, The bank and other financial Institutions Act No 25 1991, The code of conduct bureau and tribunal Act 1990; , Criminal Code Act Cap 77 Laws of the Federation 1990, The Money Laundering Act 1995, National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria1990, The Public Complaints Act Cap 377 Laws of the Federation 1990

[11] Transparency International Country Study Report, National integrity systems, Nigeria 2004 p 13
[12] The Okigbo panel set up by the Abacha led administration to look into the Babangida administration indicted General Babangida and the Governor of the Central Bank of Nigeria (CBN) of frivolous and clandestine spending. See also Gbenga Lawal & Ariyo Tobi, Bureaucratic Corruption, Good Governance and Development: The Challenges and Prospects of Institution Building in Nigeria, Journal of Applied Sciences Research, 2 ( 10) : 642 – 649, 2006  
[13] Tell Magazine Nov. 23 1998.

[14] Nigeria acceded to the International Covenant on Civil and Political Rights on 29 July 1993, same day it acceded to the International Covenant on Economic, Social and Cultural Rights.
United Nations, Treaty Series , vol. 993, p. 3 ; depositary notification C.N.781.2001.TREATIES-6 of 5 October 2001 [Proposal of correction to the original of the Covenant]
[15] Rights contained in Chapter IV of the 1999 Constitution are justiciable, section 46 of the constitution provides that “any person who alleges that any of the provisions of this chapter ( IV) has been, is being or is likely to be contravened in any state in relation to him may apply to a high court in the State for redress”.
[16] The 1999 constitution declared that rights contained in chapter two are non-justiciable sections in 6(6) (c):
‘The judicial powers vested in accordance with foregoing provisions shall not extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in chapter II of this Constitution.
[17] Amartya Sen, Economic Theory, Freedom and Human Rights, ODI Briefing, November 2001.
[18] See, generally ICHRP project design on Corruption and Human Rights, see also UN Convention against Corruption adopted by the General Assembly in its resolution 58/4 of 31 October 2003
[19] See, for example, the Seoul Findings, 11th International Anti-Corruption Conference, Seoul, May 2003 and the Nairobi Declaration adopted at the Regional Conference on the Human Rights Dimensions of Corruption, convened by Kenya National Commission of Human Rights, 22 March 2006.
[20]  “States face serious problems of corruption, which have negative effects on the full exercise of rights covered by the Covenant [ICESCR]” E/C.12/1/ADD.91 (CESCR, 2003, para. 12); or, by the Committee on the Rights of the Child, which states that it “remains concerned at the negative impact corruption may have on the allocation of already limited resources to effectively improve the promotion and protection of children’s rights, including their right to education and health” ,CRC/C/COG/CO/1 para 14. See also statement of SR on Independence of Judges in E/CN.4/2006/52/Add.4 para 96.
[21] See Julio Bacio Terracio, Hard Law Connection between Corruption and Human Rights, Geneva, 2007, http://www.ichrp.org/paper_files/Julio_Bacio_Terracino_2007.pdf
[22] In 1996, the former Tanzanian President Benjamin Mkapa formed the “Presidential Commission of Inquiry against Corruption (PCAC).” The Commission was chaired by former Prime Minister, Joseph Warioba and was entrusted to carry out diagnostic studies on corruption in the country. The findings of the Warioba Commission were published in the “Report of the Commission against Corruption Chaired by Hon. J. Warioba, State of Corruption in the Country,” Dar es Salaam, December 1996, commonly known as “The Warioba Report.” www1.worldbank.org/publicsector/anticorrupt/TanzaniaGCA.pdf
[23] Julio Bacio Terracio, Hard Law Connection between Corruption and Human Rights, Geneva, 2007
http://www.ichrp.org/paper_files/Julio_Bacio_Terracino_2007.pdf
[24] The right to corruption-free society is yet to be recognized in any international human rights convention, however there’s a growing consensus and sufficient state practice to support a claim for an international customary law to prohibit corruption in all societies.
[25] Ndiva Kofele-Kale, "The Right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime under International Law," 34 International Lawyer 149 (2000).
[26] State, here, refers to those having public authority, and by extension duty bearers of human rights. Human rights obligations apply to all branches of the government (executive, legislative and judicial) at all levels (national, regional and local). According to human rights jurisprudence, an act (or omission) is attributable to the state when committed, instigated, incited, encouraged or acquiesced in by any public authority or any other person acting in an official capacity.
[27] C Raj Kumar , The human rights to corruption-free service- some constitutional and international perspective, volume 19 – issue 19, September 14 – 27, 2002, India’s National Magazine http://www.flonnet.com/fl1919/19190780.htm
[28] Background note, United Nations Conference on Anti-Corruption Measures, Good Governance and Human Rights, Warsaw, 8-9 November 2006.
[29] Writing An Effective Anticorruption Law: Prem Notes No. 58, October 2001. http://www.worldbank.org/afr/findings/english/find203.pdf.- 
[30] Transparency requires that decisions and actions are taken openly and that sufficient information is available so that other agencies and the public can assess whether the relevant procedures are followed, consonant with the given mandate.     
[31] Answerability means an obligation on the part of the decision-makers to justify their decisions publicly to substantiate that they are reasonable, rational and within their mandate.                                                             
[32] Controllability refers to mechanisms in place to sanction actions and decisions that run counter to given mandates and procedures – often referred to as a system of checks and balances or enforcement mechanisms. The checks may take many forms, including shaming and praise. Impunity is the antonym of accountability and apportioning blame for harm done is an important component of accountability. Democratic accountability, therefore, refers to the idea that people entrusted with political power have a duty of accountability to their electorate - both directly through elections and indirectly through institutional controls.
[33] States and other duty-bearer are answerable for the observance of human rights. Though human rights law does not refer directly to accountability, it is nonetheless a fundamental feature of the entire human rights corpus. The idea of accountability is clearly implied in the framework of entitlements (rights) and duties. Human rights do not simply seek to meet the needs of people, but also recognizes people as active subjects and claim-holders, thus establishing the duties and obligation of those whom a claim can be brought to ensure that needs are met. When States sign or ratify human rights treaty, they prima facie accept the responsibility to protect, fulfil, and promote human right. When they fail, by either omission or commission in the performance of such duty, they can thus be held accountable by the right-holders whose rights have been violated. Various mechanisms of redress that exist at national and international level go further to strengthen the idea of accountability for rights violations.
[34] Complaints procedure: Several international conventions have created the opportunity for individuals or group of individuals to bring a complaint to an international monitoring body alleging a violation of human rights. The procedure can be brought to a body of experts for quasi-judicial adjudication or to an international Court (i.e. the European Court, Inter-American Court or African Court on Human and Peoples’ Rights) with the power to give a binding decision. It should be added that, although the above mechanisms have the potential to assist victims of corruption, both by providing redress and drawing attention to abuses, they have been poorly utilized.
[35] Magdalena Sepulveda Carmona, Draft Report on Corruption and Human Rights: Conceptual Paper, Geneva, 2008, www.ichrp.org
[36] Id
[37] Henry Kyambalesa, Corruption – Causes, Effects, and Deterrent, Africa Institute of South Africa Africa Insight Vol 36 No 2 – June 2006 119
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