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]
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] “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]
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]
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]
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]
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!
SYLVESTER UDEMEZUE (udems)
[i] See https://www.concisenews.global/2018/10/17/kickbacks-normal-in-govt-commissioner-defends-ganduje-bribery-video/; 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/ (accessed 22 October 2018)
[ii] See https://dictionary.cambridge.org/dictionary/english/kickback (accessed 22 October 2018)
[iii] See https://www.ldoceonline.com/dictionary/kickback (accessed 22 October 2018)
[iv] See https://en.oxforddictionaries.com/definition/kickback (accessed 22 October 2018)
[v] See https://thelawdictionary.org/kickback/ (accessed 22 October 2018)
[vi] See https://www.oxfordlearnersdictionaries.com/definition/english/bribe_1 (accessed 22 October 2018_
[vii] See https://thelawdictionary.org/bribe/ (accessed 22 October 2018)
[viii] (https://thelawdictionary.org/bribery/). 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/ (accessed 22 October 2018)
[x] Laws of Lagos State, 2015
[xi] Criminal Law of Lagos State (2011), section 67.
[xii] Op. Cit., sections 63, 64, 65 and 68.
[xiv] 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] See https://www.goodreads.com/quotes/9081300-98-of-politicians-are-either-corrupt-or-corruptible
[xvii] Attributed to Ernest Agyemang Yeboah of the University of Education, Winneba, Ghana,
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