1. Constitutional Governance and Institutions of Horizontal Accountability:
Improving the Performance of the Independent Corrupt Practices Commission1
By
Centre for Democracy & Development
2, Olabode Street, Ilupeju Estate,
Lagos, NIGERIA
Introduction
In Africa and largely across the globe, interests groups and citizens now hold strong
views that State constitutions must entrench certain fundamental principles that allow
for the creation, existence and practice of independent oversight agencies that can
safeguard the interests of the people, mediate the excesses of their government and
help to enforce the law. As Schedler, et-al aptly capture in the introductory chapter
of their book, The Self Restraining State, “we are witnessing today a growing
awareness that liberal democracy requires governments that are not only
accountable to their citizens but also subject to restraint and oversight by other
public agencies.”2
In Africa’s new struggle for constitutionalism, oversight institutions such as
Constitutional Courts, Independent Electoral Bodies, Anti-Corruption and Public
Accountability Bodies, Ombudsperson, Public Protector and Inspector General of
Government’s activities, Independent Central Bank; Gender Equality Commission,
Human Rights, Social Justice, Economic and Cultural Rights Commissions are seen,
especially in civil society, as having the potential of becoming the major pillars on
which the very foundations of good governance practices are set, when they are
allowed to function independently of influence from State organs and personalities
for the benefit and the cause of participation in governance by the citizenry. From
1
Being Memorandum prepared for presentation at the Senate Public Hearing on the Review of the
Independent Corrup Practices Commission, March 6, 2003.
2
Andreas Scheadler, et-al (eds), The Self Restraining State: Power and Accountability in New
Democracies (Boulder, Colorado: Lynne Rienner, 1999), p.1.
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2. South Africa to Ghana, Uganda to Benin republic, the principle of independent
commissions as mediatory organs or ‘honest brokers’ occupying the realm between
the citizens and governments is central in the constitution-making campaigns in
recent times and it has enriched the debate about the quality, character and
structure of governance institutions in these States.
In addition to State based oversight and enforcement commissions, a number of
African countries have also incorporated international institutions that promote
human rights and social justice into their domestic laws. For example, the African
Charter of Human and Peoples Rights, the statutes of the International Criminal
Court and the African Court of Justice have been ratified and signed into law in
several African countries.
In spite of the recognition that these commissions serve the overall purpose of
strengthening government accountability and answerability to the citizens, there has
been a certain resistance to guarantee their independence where they are already
incorporated into the constitutions. Unlike the experience in Eastern Europe, where
constitutionally entrenched commissions came on the heels of the various
‘revolutions’ heralding the collapse of the cold war state, the process leading to the
collapse of the old regimes in Africa, in which erstwhile military rulers just
reconfigured themselves into Civilian heads of states, had a bearing on the quality of
constitutional reform and the inclusion of institutions of horizontal accountability in
Africa’s post-cold war constitutions.3 In States like Benin republic, Mali, South Africa
and to a certain extent – Uganda, Ghana and Eritrea, the progressive nature of
political transition was reflected in the attention paid to these oversight agencies in
the new constitutions. In pacted democracies such as Nigeria, the nature of the
political transition also impacted on the content of the constitution enabling powerful
forces to ensure that provisions that seek to curb excessive personal powers were
removed before the military government promulgated the final product. This, for
example, led to the removal of the provision on Constitutional Court in the 1999
3
In West Africa for example, ten of the sixteen ‘new civilian’ rulers were previously military rulers and
used the power of incumbency to transform themselves when pressures to reform from within and
outside the country in the early 1990s became overwhelming.
2

3. constitution, even though the Constitutional Debating Coordinating Committee
recommended this.4
Oversight and Enforcement Agencies: The Case of Nigeria
Although elected authorities in Africa as elsewhere often do not like subjecting
themselves to strictures of accountability imposed by unelected bodies such as
independent institutions, there is evidence to suggest that they recognise the danger
that unrestrained and unaccountable government constitutes to the deepening of the
democratic agenda and the elimination of corruption. Given the history of graft,
irresponsibility and sheer abuse by successive governments in Nigeria, the
establishment of oversight institutions both within and outside of the constitution has
been one principal way of holding power in check, alongside other traditional
institutions of the State that check and monitor each other. Indeed, this is a
phenomenon that predates the renewed interest in agencies of horizontal
accountability in post cold war Africa. Nigeria’s 1979 Constitution, for example, has
elaborate provisions for oversight institutions like the Code of Conduct Bureau and
Tribunal. Nigeria’s new constitution which came into force in May 1999 largely
reproduced the provisions of the earlier constitution and added a few others like the
Independent Electoral Commission in spite of the fundamentally flawed process that
attended its drafting.
Although the framers of the 1999 constitution paid some attention to the creation of
institutions of horizontal accountability as it happened in 1979, (the Constitution has
provisions for a Code of Conduct Bureau, a Code of Conduct Tribunal, a Public
Complaints Commission, an Independent National Electoral Commission and a
National Judicial Commission), the problem is that these institutions of accountability
hardly comply with the minimum standards of independent commissions in new
democracies in the sense that their purported independence is often in name only
whilst the essence and purpose of their independence is glaringly absent in their
functioning and activities. What then are these minimum conditions?
4
Information provided by two members of the CDCC
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4. Ideally, such institutions should operate without fear or favour in their promotion and
protection of transparency, accountability and integrity to ensure a free and fair
dispensation of justice and administration. They must not be subject to the whims
or pressure of those who appointed them, even if President and/or National
Assembly wield enormous power over security of tenure of their offices.
Indeed, what makes them independent is their autonomy and the minute that is in
doubt, their legitimacy will also be severely affected. For example, there should be
mechanisms, which will allow such Commissions have access to adequate
resources for operations so that they do not become beholden to governmental
institutions under their purview in order to be able to fulfil their mandate. The recent
example of the Electoral Commission and the incessant complaints of its Chairman
of governmental interference and lack of funds demonstrate this. Therefore, it is
important for the Constitution to guarantee adequate funding through the
Consolidated Fund of the National Assembly. In Nigeria, this has not been the
case since the current Constitution does not give a constitutional guarantee on the
funding of these institutions. They are at the mercy of the Executive branch of
government and are almost always treated like State controlled Commissions such
as the Public Service Commission, Judicial Service Commission, Federal Character
Commission, National Revenue Mobilisation Commission etc.
On the fundamental concept of Independent Commissions which is that these
Commissions will act as society's watchdogs in seeking information, justification for
government actions, oversight and enforcement, in Nigeria – there is often an
asymmetry between the agencies and the public officials – especially when it comes
to holding the ‘big men’ accountable for their actions. Although their right to get an
answer is not often questioned by those in authority, that right does not often extend
to the right to make the answer public. Neither are oversight agencies empowered
to act independently of the Executive arm of the State, of the National Assembly or
other sectoral interests that might exist and to seek the enforcement of the law since
they often lack prosecutorial authority and depend on the Justice Ministry to file
cases on their behalf.5 Although ICPC is empowered to investigate reported crimes,
the powers to prosecute still lies with an external body. Now, the amended ICPC law
5
This is a major complaint by the Chair of the Independent Anti-Corruption Practices Commission,
Justice Akanbi. See Tell Magazine, November 11, 2002.
4

5. in the Senate has removed the powers of investigation and transferred this to the
existing bodies charged with this responsibility, we believe this is not the way to
respond to the obvious delays in prosecuting the cases of alleged offenders.(Otive:
Please check what the new law says about prosecution and revise my paper
accordingly)
Typifying this negation of a fundamental principle of independent institutions of
accountability is the elaborate provision on the Code of Conduct Bureau, which has
been in the Nigerian constitution since 1979. This provision empowers the Bureau to
demand declaration of assets by public officials elected or appointed to office. It is
the responsibility of the Bureau to ascertain the veracity of the claims made in these
declarations. An enforcement institution with prosecutorial authority, the Code of
Conduct Tribunal, is also entrenched in the constitution with the powers to punish.
The irony is that the assets declared cannot be made public unless the declarant
chose to voluntarily make such public, hence the opportunity to expose known cases
of corruption is limited. An attempt by a civil society organisation, the Media Rights
Agenda, to challenge the secrecy surrounding asset declaration and promote
freedom of information was dismissed by a High Court judge in a judiciary that is
itself riven by corruption and lack of independence. Ironically, in order to tackle the
inability of the Code of Conduct Bureau to address the unrelenting problem of
corruption in government and seeing the futility of using the constitutional provisions,
the Obasanjo government set up the ICPC with extensive powers outside of the
Constitution and often in conflict with the provisions of the Code of Conduct Bureau.
Instead of reinforcing the Constitutional provisions, the new body has rendered it
largely moribund and the two are now engaged in an unnecessary turf battle.
Meanwhile the asymmetry between the extent of corruption in the polity and the
culprits brought to book remains glaringly disproportionate. (Otive: My argument
here is that the publicity is key to engendering a culture of accountability and
that ICPC should be linked to the Freedom of Information Bill and our
Whistleblowers Act and we should be urging the Senate to pass both if they
are genuinely interested in strengthening ICPC Act – We should then attach
the Whistleblowers Bill as an appendix to this paper)
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6. Leaving aside the problems imposed on ICPC by its flawed establishment in Nigeria,
it has sadly also suffered a credibility deficit due to the lack of transparency in the
unstructured manner that it also interacts with the general public, hence the negative
press it has received in recent times. Given the focus on accountability and
justification for governmental actions, most watchers of ICPC and such bodies
believe that constant engagement with the public is key. Publicity must not only
apply to power holders but also to agents of accountability. In a situation
where they lack the capacity or the desire to publicise their work with the
public, they expose themselves to the same accusations of self-importance
and arrogance that often get government into trouble with the citizens.
National Oversight Institutions and the Challenge of relevance
While the situation of Oversight and Enforcement Institutions is not as bad in some
countries like South Africa, Botswana and Uganda – where some landmark cases
have promoted public interest law and judicial activism and led to changes in the
Constitution, the Nigerian situation described above is more of the rule than the
exception on the continent. Indeed, oversight agencies face a serious challenge of
relevance and legitimacy in other countries where they are in operation – primarily
because they are not even constitutional bodies.
The challenge of legitimacy is not just one of operations and legal jurisdiction, but
also primarily one of conceptualisation and we have seen this in the recent
disagreements between the Executive branch and the National Assembly.
Conceptually, oversight agencies would appear to constitute a contradiction in the
sense that accountability of elected authorities and personalities to powerful
institutions occupied by unelected persons, tasked with ‘supervising’, ‘monitoring’
and/or ‘regulating’ the powers of elected officials is inherently seen to be
‘undemocratic’. Indeed, as we have seen in the recent debate, some politicians have
argued that it is a surreptitious way of power brokerage by those who could not face
the heat of electoral politics. Major proponents of this position argue that the checks
and balances provided by the creative tension among the three branches of
government – the executive, legislature and the judiciary - is adequate and ICPC
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7. deserves no special powers. Whilst we believe that there is need to harmonise the
various contradictory instruments in Nigeria, we do not agree that Nigeria does not
need independent accountability institutions like ICPC.
The question remains however: “who guards the guardians” and this is very central
to the relationship between elected officials and members of oversight agencies. As
we have seen in Nigeria, this has already become a major problem and there is
indeed a widely held perception that the current exercise has been triggered by this
unresolved problems. Indeed, the suggestion by many proponents in the Senate is
that ICPC is on an hatchet job for the executive branch of government, an allegation
already vehemently denied by the leadership of ICPC. It is not uncommon of
independent oversight institutions therefore to overstep their bounds and promote
political viewpoints or seek to embarrass elected authorities through biased and
partial judgements, as has been the case in some countries in Eastern and Central
Europe,6 but it is also commonplace for unscrupulous elected officials to attempt to
hamper the work of independent commissions aimed at curbing their excesses.
Transparency therefore holds the key to ensuring that the actions of such a body are
not perceived to favour one party to the detriment of the others. Partisan political or
ethnic affiliations become an issue when accountability agencies confuse their roles
and responsibilities with that of the executive branch or legislative committees. This
encroachment into jurisdiction that is often undefined but which appears outside of
the realm of these institutions has been a key source of problems especially in
maturing democracies with a great deal of potential for reversals. Yet, it is true as
Schedler and others argue that ‘holding power accountable should not imply
determining the way it is exercised; neither does it aim at eliminating
discretion through stringent bureaucratic regulation’.’7
In our view, a way of addressing these institutional challenges is by defining different
levels of accountability – governmental, legislative, bureaucratic, judicial,
electoral and international and deciding early a clear code of conduct or behaviour
6
See Herman Schwartz, ‘Surprising Success: The New Eastern European Constitutional Courts’ in
Andreas Schedler, et-al, op-cit, pp.195-213, especially the section on ‘The Failures’.
7
Ibid, “Conceptualising Accountability”, p.7
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8. for those involved in independent oversight institutions that are constitutionally
entrenched. Members of oversight institutions, for example, should at the minimum
be expected to:
• promote the principles of natural justice; promote and protect human rights;
• act in an unbiased and impartial manner; not unfairly discriminate against any
member of the public on account of race, gender, ethnic or social origin, colour,
age, disability, religion, political persuasion, conscience, belief, culture or
language;
• avoid the use of the oversight institution’s membership to unfairly promote or
prejudice the interests of any person, political party or interest group;
• avoid the use of such bodies to persecute individuals on the basis of political
persuasion;
• promote sound, efficient, effective, transparent and accountable administration in
the course of his/her official duties shall report to the appropriate authorities,
fraud, corruption, nepotism, maladministration and any other act which
constitutes an offence, or which is prejudicial to the public interest
• avoid the use or disclose any official information for personal gain or the gain of
others;
• execute his/her duty in a transparent and accountable manner;
• uphold the integrity of the constitution.(ICPC, for example, actually contradict,
rather than reinforce the fundamental tenets of the constitution, given the process
of its incorporation into law. It is in this sense that many continue to see it as a
Presidential, rather than a Constitutional Commission.)
Best Practice Experiences in the Establishment of Oversight Agencies.
Given one’s preference for oversight agencies if some faith is to be restored in
government, there are objective concerns that will have to be addressed by this
amendment by the National Assembly if the exercise is not to be seen as self-
serving and in order to enhance the principle of legitimacy that is necessary for the
efficiency of such institutions. Based on the experience of independent institutions in
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9. mature democracies and the more recent experience of bodies like the Constitutional
Courts and the Office of Public Protector in Eastern Europe and South Africa, a
number of measures seem to suggest themselves as institutional mechanisms to
overcome doubt in the promotion and performance of the ICPC and such other good
governance structures. These relate to:
Establishment: For their legitimacy, all Independent Commissions must be
established in terms of the Constitution supported by Acts of the National Assembly.
All Commissions so established must be essentially autonomous and independent
entities and protected from interference and undue influence from whatever source.
Membership: All commissioners should be in full time service for fixed periods. No
re-appointment should be allowed. Indeed, ICPC must have a fully rotating
membership on termination of the period for which they are appointed. We have
noted with consternation that the new Senate Bill is proposing a five-year single term
of office. Whilst this is aimed at ensuring the integrity of the Independent
Commission, it seems to us that this term limit is too short. Equally, we agree that a
15 year term of office is excessive. Having studied the various commissions around
the world, we would recommend a 7 - 10 year single term of office. In South Africa
and Eastern and Central Europe, the public protector and most of the Constitutional
Court judges are appointed for single terms of seven to ten years and it is believed
that this has contributed to the ‘surprising success’ of these institutions.
Membership Qualifications: Ideally, and as far as may be practicable at all times,
commissioners should be appropriately qualified professionals with relevant
experience related to their field of engagement as commissioners. Appropriate
qualifications would normally be of a professional nature, either by degree or
professional examination. There will necessarily be desirable exceptions.
Appointments should be gender sensitive and should as far as is possible, represent
the diversity of the society. All persons appointed should be of high moral integrity
and be known to have adhered to ethical standards professionally.
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10. Appointment of Members: Depending on the Commission and country, appointment
into independent commissions is usually the formal prerogative of the Head of
State/relevant Minister in all cases after certain procedures have been adhered to.
We note with concern the attempt by the new bill to remove these powers from the
President of the country. In our view, this is ill-advised and we propose that the
President should continue to have the final responsibilities of appointing
Commissioners after certain procedures have been undertaken. Although there are
no consistent or fixed procedures, the following are common best practice in the
appointment of members of oversight agencies:
Nominations are usually sought from appropriate sources such as professional
bodies, representative associations, the universities, relevant non-governmental
organisations, the Judicial Service Commission, etc. In certain instances application
for appointment could be entertained after advertisement and we believe the ICPC
situation now calls for this. Except in the choice of the Chairperson, a reputable
executive selection firm should be charged with the responsibility of recruiting
members of the ICPC on clearly agreed, but generally stringent criteria,
including open advertisement for good candidates. In many cases, consultation
should take place with the Judicial or Civil Service Commission - it will be evident
from the nature of the commission where this is appropriate. The idea however that
the Chair of any oversight agency must be a serving or retired Judge or
someone schooled in the rudiments of law is one that is beginning to change,
although this is still prevalent in Africa. What seems important, in our view, is
the competence level and moral authority of the leadership. Therefore, we are
not convinced by the proposal in the new bill for a serving Judge of the Court
of Appeal to chair ICPC. (The widely held view except in few instances is that the
current Chairperson of ICPC is a person of integrity, even if the structure he heads
has foundational problems that must be overcome.)
Following nomination or application, a Committee of the National Assembly usually
considers names either directly or through a relevant Ministry. The Committee
should be kept informed of all applicants or nominations whether considered suitable
or not and there should be no filtration procedure on the part of the Ministry.
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11. Relevant Ministries/Department should however always be invited and free to
comment on the merits of any or all prospective commissioners in the course of the
final decisions and recommendations to the President/Head of State.
Following approval by National Assembly after scrutiny by the Select Committee –
the names should be forwarded to the president for formal appointment and
thereafter gazetting.
Members Remuneration: Again, whilst there is no standardised practice,
Commissioners should be remunerated on a basis fully comparable to prevailing
salaries paid for their level of skills and experience in the private sector and certainly
no less than they are earning elsewhere at the time of their appointment.
Tenure of Office: Tenure of office should be for limited non-renewable periods of not
less than five years and not more than ten as indicated above.
Dismissal: On representation, the Select Committee on Appointments may on a two-
thirds majority vote by its members recommend to the National Assembly the
removal of a Commissioner on the basis of his/her prescribed functions, insolvency,
insanity, serious misbehaviour or conviction of any criminal offence. Such removal
shall take place only after a Committee of Enquiry has been convened and has
heard representations from the Commissioner or his legal representative.
Vacancies: Where an office falls vacant by act of dismissal, resignation or death, the
National Assembly Select Committee on Appointment may appoint a replacement
following procedures applicable generally to the appointment of Commission
members at the time.
Funding: Usually, budgetary considerations dictate that the number of commissions
and commissioners should be restricted. If of the desired calibre, it is generally
possible for a small number of Commissioners to perform their duties as efficiently
as would a larger number.
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12. It is also perceived that limited numbers of full time commissioners would yield
greater value for money in terms of both efficiency and application to their task than
larger numbers of part time commissioners. It is usually seen to be more productive
for there to be greater numbers of professional staff rather than greater numbers of
commissioners.
That said, the overriding principle is that funding must be adequate. This requirement
must be entrenched in the Constitution to ensure independence. What constitutes
adequate should be determined by the Appropriations Committee of the National
Assembly and not by the Ministry of Finance - although ultimately sourced from the
Consolidated Revenue Fund. Restrictions on funding will inevitably affect the ability
of any commission to deliver, that which is expected of it.
Staff: Staffing at senior level will necessarily be limited by costs. Similar
considerations would apply to both qualifications for appointment and the level of
remuneration as are recited above in relation to commissioners. But staffing
requires a major attention. In our view, ICPC has found itself in a compromising
situation due to the fact that it has often relied on professionals from other arms of
the public service to undertake certain tasks, rather than its own independent
investigative and prosecutorial team and this has often been perceived as leaving
room for the prejudices of those officials to find space in the work they do.
Functions and Powers: it is recommended that the mandate of ICPC be
incorporated into the Constitution together with certain essential functions and
powers and that the remaining detail is incorporated into the supporting legislation.
This is key if the Commission is to escape being labelled a presidential, rather than a
constitutional body set against so called enemies of the presidency.
What Future for Independent Oversight and Enforcement Institutions
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13. It is clearly a positive development that Africa’s democratic transitions have given
rise to attempts to bring oversight agencies into the mainstream of constitutional
governance and overall public sector management reforms. It is to the advantage of
States like Nigeria where trust in government capacity to act in the best interest of
the citizens has been eroded over the years to use these institutions to gradually
build confidence in the transition years and it is hoped that key stakeholders present
at this meeting will take these lessons to heart in their effort to entrench good
governance principles in Nigeria.
For these institutions to make an impact beyond their appearance in constitutional
documents though, some principles are pivotal to their promotion as oversight
agencies responsible for the accountability of elected authorities. The key principles
of good governance in oversight and enforement agencies are:
• Although independent, oversight and enforcement agencies must themselves
be accountable both to elected civil authorities – especially the legislature and
to civil society and not see themselves as alternative governments;
• They must operate in accordance with the international law and domestic
constitutional law by reinforcing constitutional provisions, rather than acting
outside of them;
• Information about the work of oversight agencies must be widely available,
both within government and to the public, and a comprehensive and
disciplined approach to the management of their resources must be adopted;
• Activities of oversight agencies must be based on a well-articulated hierarchy
of authority between elected civil authorities and the agencies;
• An environment exists in which civil society can be consulted on a regular
basis on oversight institutions’ policies, resource allocation, and other relevant
issues through regular public, special and ‘in-camera’ hearings;
• Oversight agencies personnel must be adequately trained to discharge their
duties in a professional manner consistent with the requirements of
democratic societies;
• An environment supportive of regional and sub-regional accountability organs
must be encouraged by policy makers and constitutionalists.
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14. Conclusion
While independent institutions are not going to resolve all of the governance
problems highlighted above even when entrenched in the Nigerian constitution, they
will go a long way in restoring confidence in government in Nigeria where
governance structures and practices have traditionally been weak and least defined
and expose public officials to the demands of public accountability. While we have
noticed positive developments with the establishment of bodies like the ICPC, the
Budget Monitoring and Price Intelligence Office in the Presidency, the Human Rights
Commission and the Electoral Commission, the credibility of these institutions
remain in doubt as many believe their independence is in name only. Their
accountability to the elected authorities and not just the Presidency is one reason
why they need to be appropriately institutionalised in the constitution.
Nevertheless, it is clear that even when Nigeria has addressed the question of the
traditional structures of accountability through the resolution of current problems in
inter-governmental relations between levels of government, separation of powers –
especially between the executive branch and the legislature, independent oversight
institutions are critical to regaining the trust and confidence of the citizens. The
elements of ‘good governance’ bound to result from the effective functioning of
independent oversight institutions will inevitably focus the mind of public sector
officials at all times on the key principles of accountability and answerability and also
help restore faith whilst arresting the erosion of state legitimacy.
As we stand on the threshold of history, it is important that the Senate sees its task
in this regard as task-focussed, rather than personality determined and we hope
some of our modest recommendations will help this august Assembly in achieving
this.
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