Criminal Liability of Corporations for Bribery in Nigeria: Lessons from USA and UK

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ABSTRACT

Criminal Liability of Corporations for Bribery in Nigeria: Lessons from USA and UK

Dr. Akeem Bello*

Corruption is recognised globally as morally and legally wrong. Bribery is the main manifestation of corruption in Nigeria. This article examines the criminal liability of corporations for bribery in Nigeria with a view to strengthening the legal regime. It reviews the liability of corporations for bribery in the United Kingdom and the United States of America. The review finds that while Nigerian law imposes criminal liability on corporations for bribery generally, it does not deal with important peculiarities arising from corporations’ involvement in bribery. The examination of the United Kingdom Bribery Act 2010 and Foreign Corrupt Practices Act in the United States of America reveals that the statutes address other peculiarities concerning corporations’ involvement in bribery which serves as the basis of a stronger legal regime. The article recommends the adoption in Nigeria of some of the innovations in the United Kingdom and the United States of America.

INTRODUCTION
Corruption is recognised globally as morally and legally wrong. Bribery is one of the major manifestations of corruption in Nigeria.₁ A recent World Bank Investment Assessment Report on Nigeria (the Report) provides cause for concern on the propensity of business transactions in Nigeria to be tainted by bribery.₂ The Report analysed businesses in 26 states and noted that one-third of micro-enterprises affirm that informal payments or gifts are commonplace in Nigeria. In Nigeria, there are no specific statutory provisions dealing with the involvement of corporations in bribery (corporate bribery) despite the problem of companies paying bribes to secure business.

The provisions of anti-bribery statutes apply to “persons”, a term defined by section 18(1) of the Interpretation Act₃ to include “anybody of persons corporate or incorporate”. Consequently, criminal liability for bribery can attach to corporations. The general rules imposing criminal liability on corporations are however inadequate to regulate and punish involvement of corporations in bribery. The United Kingdom Bribery Act 2010 (hereafter “the UK Act”) has addressed other aspects of corporate bribery beyond merely criminalising bribery. The UK Act imposes criminal liability on a commercial organisation if a person associated with it bribes another person intending to obtain or retain business or to obtain or retain an advantage in the conduct of business of the organisation.₄ The Foreign Corrupt Practices Act (FCPA) in the United States of America (US) establishes accounting and record keeping standards to facilitate the investigation of bribery involving US corporations.₅ Another critical issue is the desirability or otherwise of exempting facilitation payments and corporate hospitability gifts from the offence of bribery, While

* Ph.D., BL. Lecturer, Department of Public Law, Faculty of Law, University of Lagos

1. NBS/EFCC Business Survey on Crime & Corruption and Awareness of EFCC in Nigeria, 2007 Summary Report (Abuja and Vienna: December 2009) 1; see also E.U.M. Igbo, ‘Corruption in Nigeria: Patterns and Trends’ in E Alemika & I Chukuma (ed), Crime Victimization, Safety and Policing in Nigeria, (Lagos, Malthouse Press Limited, 2011) 104
2. G. Iarossi & G. Clarke (ed), Nigeria 2011: An Assessment of the Investment Climate in 26 States (Washington: World Bank, June 2011) xi
3. Cap I23, Laws of the Federation of Nigerian, 2010
4. Bribery Act, s. 7(1)
5. FCPA, 15 U.S.C. s. 78m(b)(2)A)