By John Amoda
THISDAY’S February 10, 2011 report on the Senate Confirmation meeting on President Jonathan’s choice for ICPC Chairman provides a perspective on legislative decision making on anti-corruption legislation. In that report the reasons for the Senate’s rejection of the President’s nominee were given.

The decision not to confirm the President’s choice, Justice Pius Olaiyewola Aderemi (rtd.) was influenced by the age of the nominee. The Senate’s Committee on Drugs, Narcotics, Financial Crimes and Anti-Corruption was critical of the performance of the ICPC.

The Committee observed that the ICPC “is in dire need of focus, repositioning and effectiveness” and laid the blame for the state of the anti-corruption Commission on the age of its leadership. The Committee argued that “since the establishment of ICPC, it has been headed by old men, all retired justices of the Supreme Court and that has impaired the performance of the Commission”.

The Committee also observed that the guiding law on appointment has been unnecessarily interpreted to limit appointment of the Commission’s Chairman to retired justices of the Supreme Court. Senator Akinyede said although Section 3 subsection 3 of the Corrupt Practice and other Related Offences Act 2000 states that the Chairman of the Commission shall be a person who has held or qualified to hold the office of a superior court of record”, this by no means implied limiting the choice of chairman to persons who at retirement were already too old to cope with the demands of the office.

This, in the opinion of the Committee, may account for the difference in performance of the two anti-corruption agencies, EFCC and ICPC. On the suitability of the nominee for the post of Chairman, the Committee noted that the nominee gave unsatisfactory answers to questions with regard to his plans to turn around the Commission.

At this juncture one may be permitted to ask questions concerning the appropriateness of the legislation establishing both anti-corruption agencies. It may be that the legislation has mis-defined the problem in the first place. Corruption although acknowledged as pervasive has yet to be adequately defined. Is it a problem of defects in a system or one of a defective system? If the first definition of the problem is decided as the objective of policy, it cannot be addressed in terms of approaches adequate for the second problem definition.

It will appear that the Corrupt Practices and Other Related Offences Act 2000 was informed by an understanding of corruption as a problem of defects in the system. This I will contend informed the approaches to the construction of the anti-corruption intervention as an elimination of corruption from the system problem.

This accounts for the criminalization of corruption and the adoption of prosecutorial methods for perfecting the system. We should ask for the empirical; evidence there are for defining the problem of corruption as criminal behaviour and the political system as a perfect system marred by corruption. Going by allegations and charges of corruption brought to the courts as daily reported in the papers it would appear that the scale of corruption is to be correlated with discretionary authority and powers of officeholders both in the public and private sectors.

This is the inference to be drawn from the incidence of corruption and the sums corruptly appropriated. Corruption it can therefore be surmised as occurrences in roles where abuse of power and authority are aspects of discretions contextualizing decision-making. At all levels of governmental and private sector leadership it would appear that the higher the authority and the greater the power of decision making the greater the discretion unchecked by due process balance of power for monitoring and auditing conduct.

The system of decision making in the public and private sectors characterised by discretions unlimited by checks on conducts could be the cause of corrupt abuse of power and authority. This being the case, it seems that corruption should be described as a feature of a defective system of decision making and implementation that is both national and international.

The Halliburton saga tells us about the scope of corruption. It tells us that corruption is international and a strategy as well as tactics of business leadership and decision-making; that like the flaring of gas, the profit to be gained by criminal conduct far outweighs the penalties incurred by the breach of laws and regulations. Shareholders are likely to ask for the heads of CEOs who forego corrupt but lucrative opportunities for profit making.

Giving its global and societal scopes is it then not more appropriate to describe corruption as a feature of a defective system of power and authority? When so-defined corruption becomes a political problem and not a policy issue. We should expect that there will be conflicts between supporters of the system and opponents of the system when the problem becomes one of changing the prevailing system and the preservation of the system as it is.

Describing corruption when it is a defective system problem, as a system with defect problem, can therefore be seen as an indication of a pro-corruption politics. It is at this point that the wisdom informing anti-corruption legislations of the National Assembly can be better appreciated. Both the EFCC and ICPC from a “defective system problem” template may be wrong solutions to a correctly diagnosed problem.

The solution sought by the Senate in repositioning both the EFCC and ICPC may not therefore be one of making either one of the two, the model to be copied by the other. The age issue may or may not be relevant in the discourse relating to change of defective systems of decision making power and authority.

The challenge therefore consists in empirical reviews of the pattern of incidences of corruption for appropriate description of what it is. I submit that this is the way that should be taken by the National Assembly in addressing the problem of reform of the EFCC and ICPC.