There was a near collective uproar in the national press and on social media when Nigeria’s President, Goodluck Jonathan commented on national primetime television that “some of the cases they (an inelegant reference to his administration critics and those ‘twittering children of anger’ on social media) call corruption are just people stealing.”

In a country which has acquired a fabled and storied reputation for the misuse of the public commonwealth for the satisfaction of the desires of a well-connected and high heeled few, a statement that suggested a watering down of the clear divide in public governance between satisfying the needs of the citizenry and the placating the inclinations of the superintendents of the public purse was always bound to raise the eyebrows.

I firmly believe that the public was in its right to be alarmed with President Jonathan’s remarks. For one, he took a bit of time to clarify himself, explaining to reporters a few days later that his words were taken out of context because:  “The CJN (Chief Justice of Nigeria), Mustapha decided to take a look at the files that dealt with corruption and more than 80 per cent of them were just cases of stealing. But people use corruption to cover all.”

He further remarked, with more than a faint dash of native sense, that: “What I am saying is that let us go to the South-West and go to a typical community and they look at you and say this man is corrupt, people will be looking at you. But call that same man “ole”, that is thief, and see what will happen to him. Our people hate thieves more than corrupt people, yet most times, we use corruption to cover the lapses.”

All fair and reasonable observations and therein lies the problem with the legalistic argument that seeks to erect an iron clad wall between corruption and stealing.

Corruption

In a piece for this blog, Teingo Inko-Tariah makes a good case for severing the tentative links between stealing and corruption, complete with legal provisions and definitions. It is an admirable work in exploring how strict legal connotations can lead to some improbable but perfectly plausible conclusions. There is very little to fault in the weaving legal narrative she brought to bear to a topic which, to be fair, many a lawyer has reacted rather emotionally – including respected legal luminary, Professor Itse Sagay.

Having considered all of that, there is something we should be clear about. While stealing is not strictly speaking the same thing as corruption, it is indispensable to an understanding of what corruption really is. Ms. Inko-Tariah acknowledged as much when in illustrating the provisions of s.383(1) of the Criminal Code on stealing, she adds that s. 390(5) of the same Act provides that where an offender is employed in the public service and the property stolen belongs to the state or came into the possession of the employer by virtue of his employment, the offender would be liable to seven years imprisonment.

Let’s conjure an illustration of our own. In law, before we consider the criminal offence of stealing, the first question to be determined by a legal observer is this, ‘Is the contentious object in question capable of being stolen?’ This may seem like a trivial obsession which only lawyers are capable of conjuring but it is very important for legal purposes. Under our criminal law, “every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen” (s.382, Criminal Code). That same provision says that, “every tame animal, whether tame by nature or wild by nature and tamed, which is the property of any person, is capable of being stolen.” But with the incredulity that many a Nigerian lawyer gets familiar with after the first two years of shock in university, do you know that a pigeon cannot be stolen in Nigeria? Yes, you need a specific set of circumstances to be present before a Nigerian court will convince itself that a pigeon can be stolen (To put you out of your misery, the bird must be in a pigeon-house or on its owner’s land before it can be ‘capable of being stolen,’ just why this distinction is necessary is baffling to the mind).

In a typical Nigerian corruption case – cue in the police pensions funds scandal, the infamous case of Tafa Balogun, the Bode George saga etc, the key component is the unlawful appropriation of public funds – in other words, money. A simple question arises, is money capable of being stolen? Our courts, as far back as the 1920s, have satisfied themselves that money is perfectly capable of being stolen. Let’s go back to our corruption definition in the Criminal Code,

According to s. 98(1) of the Code (Inko-Tariah brilliantly reminds us that corruption itself is not defined in this law),

“Any public official… who-

(a) Corruptly asks for, receives or obtains any property or benefit of any kind for himself or any other person; or bribes, etc.

(b) Corruptly agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person, on account of-

(i) Anything already, done or omitted, or any favour or disfavour already shown to any person, by himself 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 organisation or institution in which he is serving as a public official, or

(ii) Anything to be afterwards done or omitted, or any favour or disfavour to be afterwards shown to any person, by himself in the discharge of his official duties or in relation to any such matter as aforesaid

is guilty of the felony of official corruption and is liable to imprisonment for seven years.”

Let’s break this this massive block of ‘legalese’ down. If the object our hypothetical public official was accused of stealing was public funds stashed in a pension fund for example, he would be liable for corruptly obtaining (a); if it is a large sum, he would need a banker and some inside collaboration from colleagues or family associates, which would make him and the banker/family associate/colleague liable while moving the money [under(b) (i)]; and when such monies are distributed after the fact [under (b) (ii)].

What about the stealing provisions of the criminal law? Under s.383, the Code says:

(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents-

(a) an intent permanently to deprive the owner of the thing of it;

(b) an intent permanently to deprive any person who has any special property in the thing of such property;

(c)  an intent to use the thing as a pledge or security;

(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount. In s. 390, “any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years.to the owner.”

The question becomes, what part of the stealing provisions in sections 383 and 390 doesn’t stop the prosecutor from charging our hypothetical public official under those laws? The answer is nothing. Ms Inko-Tariah’s contention that “an accused person cannot be successfully be charged for the offence of corruption when the facts relate to the offence of stealing and vice versa” flies in the face of actual legal practice. There are some (actually, a lot) of cases where the facts support both the charge of corruption and that of stealing, and public prosecutors – the ICPC and the EFCC have not been shy to slam charges of both counts on accused individuals. Where an exception may be made which may support Ms Inko-Tariah is that since corruption packs more juice (seven years) than stealing’s three years, and our courts have a propensity to make sentences run concurrently ( that is at the same time instead of mathematically adding up the years of sentencing), they often stick to the more serious criminal charge.

Another way of putting this is that stealing can be seen as a core component of many a corruption case – especially when it happens to involve Nigerian public officials. I readily admit that the above illustration is a simplistic one and Nigerian corruption schemes can be a complex, highly diversified endeavour. That’s why we shouldn’t make base, simplistic distinctions that are manifestly unhelpful to tackling a core defect of Nigerian governance.

Away from the law, when you closely consider the President’s clarifications on his earlier comments, it looks even sadder than the original comment itself. This is what he said in the wake of the backlash his remarks.

“A thief should be called a thief and treated as such. In my village, when an adult steals, they strip him unclad, humiliate him and his family, but if you say this man is corrupt, they won’t know what you are talking about. We are using corruption to cover it all up.”

This is a winding, confusing comment. It betrays the legal ignorance of our President about his government’s weapons of choice in its self-styled war against corruption. For one, the law makes corruption a stronger offence than stealing. For another, it subsumes most instances of stealing in its definition of corruption. And for an extra, it is government’s duty to educate its constituents if it feels that people “won’t know” that corruption is a bigger deal and transcends stealing. Simply separating both concepts does not help your cause – it accentuates the dangerous divide that already exists in the minds of the people, and some lawyers.

A final word should be reserved for those Nigerians lawyers who glory in technical legal distinctions. It is a dangerous disposition in our jurisprudence to celebrate the fact that we can distinguish between legal conceptions when such exercises do not aid a wholistic appreciation of the subject matter, and are just an exercise in self-fulfilment. One of Nigeria’s preeminent oil and gas lawyers, Dayo Morakinyo Ayoade put this brilliantly when he said: “We operate a jurisprudence of technicalities. Nigerian lawyers, and to a large extent judges, operate from a mentality of technical distinctions that leave the actual subject matter unattended to.” Witness the length of time it complete a legal action in court, and the plethora of cases in our courts that are tossed out on a legal technicality – a process was filed out of time or a prerequisite to filing a suit was not ‘substantially complied with.’ The 2014 case of the Bodo community in Rivers who sued Shell in Nigeria for 8 years and got nowhere but were able to successfully obtain legal remedy in the United Kingdom after just 2 years; and the infamous James Ibori legal debacle in Nigeria that finally got resolved in London stands as a biting indictment of a jurisprudence infiltrated with a rules first, justice later mentality.

This is not how a serious nation should be run, and the Head of State giving the entire nation a lecture on the finer lines of legal interpretations is totally unhelpful in this regard.

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blossomnnodim.com OP-ED: This post reflects the opinions of the author and not necessarily those of blossomnnodim.com as a publication.

Ikemesit Effiong: Legal practitioner, political blogger, research consultant and avid troller of online curiosities. He reads too much for his own good, talks too little for others’ comfort and believes that the best place to be is underwater – with a swim trunk of course. He tweets as @JudgeIyke