ANALYSIS: ICPC may become toothless as senate wields the hammer

The bill passed by the senate on Tuesday to amend the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act has grave implications for the anti-graft war, according to a clause-by-clause analysis done for TheCable by legal experts.

The amendments have the potential to hinder the commission from being an effective law enforcement agency in the critical task of investigation and prosecution of crime, recovery of stolen or diverted public assets, assessment of corruption risk in ministries, agencies and parastatals, and stability in the management of the agency.

For instance, section 22 (3) of the principal act provides that “any public officer who, in the course of his official duties, inflates the price of any goods or service above the prevailing market price or professional standards shall be guilty of an offence under this act and liable on conviction to imprisonment for a term of seven years and a fine of one million naira”.

In the amendment considered and passed by the senate, the N1 million fine was reduced to N500,000 without an option of jail term. It is equal to a slap on the wrist.

While section 7(1) of the ICPC principal act provides that “the chairman may issue administrative orders to be called ‘standing orders’, which shall conform with the provisions of the general control, training, duties and responsibilities of officers of the commission, and for such other matters as may be necessary or expedient for the good administration of the commission and to ensure the efficient and effective functioning of the commission”, the senate amended the provision and substituted “chairman” with the word “commission”.

Whittling down the powers of the ICPC chairman conflicts with the globally recognised standard for law enforcement agencies where responsibility is not shared but actually vested in the head of the agency. That is why heads have to take responsibility and resign for the failures and inadequacies of an agency.

Senate has substituted the phrase “members of the board” with “commissioners” in several aspects of the amendment, which can be misleading to the public.

Transmitting the titles of commissioners to board members, who are political appointees on a law enforcement agency, can create an absurdity unknown within law enforcement circles.

The boards of Police Service Commission (PSC), Code of Conduct Bureau (CCB) and Code of Conduct Tribunal (CCT), Economic and Financial Crimes Commission (EFCC) and National Drug Law Enforcement Agency (NDLEA) do not refer to their board members as commissioners.

Also, the provisions vesting committees of the board with certain powers or functions effectively empower the board to carry out the functions of staff of the commission.

On the meetings of the board, usually, it is the accounting officer of the commission, which is the chairman– or whoever he so designates — that can preside. The amendment says members of the board can appoint anyone to preside in the absence of chairman. A random appointment of any of the members to preside at a board meeting will go against the chairman’s responsibility as the accounting officer.

Divesting the powers of the ICPC chairman has grave implication. As the accounting officer of the commission, the chairman was given certain administrative and operational powers in sections 7 and 70 of the principal act. It stands to reason that with responsibility as the accounting officer comes certain powers on which basis the chairman can be held accountable.

Therefore, the amendments to Sections 7 and 70 to vest those powers in board members of the commission are antithetical to the chairman’s position as accounting officer of the commission.

The deletion of “oral directives” in paragraph 4(8) of the principal act and replacement with “written directives” can cause a clog in the operations of the commission. Oral directives are as valid as written directives in law enforcement circles. Limiting action to written directives alone will slow down the commission’s effectiveness and efficiency.

Although the senate has passed the amendment bill, the house of representatives is still working on it.