Mental Element of Bribery under Nigerian and Us (Federal) Anti-Bribery Laws: an Overview

AuthorAkeem Olajide Bello
PositionLecturer Grade I, Department of Public Law, Faculty of Law, University of Lagos, Lagos, Nigeria
Pages69-87
JURIDICA
69
Akeem Olajide BELLO
1
Abstract: Academic reviews have highlighted the problem of lack of clarity with Nigerian anti-
bribery laws. It is important for the criminal law to clearly state the mental element of bribery. This
would communicate to citizens, lawyers and judges what is wrong with bribery. It would also provide
a yardstick to distinguish between the socio-cultural practice of gift-giving and bribery. This article
analyses the mental element of bribery in Nigeria and federal anti-bribery laws in United States of
America. The analysis is undertaken with a view to drawing useful insight to pr opose reform of
Nigerian anti-bribery laws. The article finds that American laws better clarifies the wrongful mental
conduct that transforms gift-giving into bribery. Unlike Nigerian statutes that uses the undefined word
corruptly to capture the mental element of bribery, American statutes while using the word
corruptly further captures the mental element of br ibery in terms of intention to use a bribe to
influence official action. The American approach if adopted by the legislature to reform Nigerian
anti-bribery laws would provide better guidance to the courts, lawyers and laymen in understanding
why the law criminalises bribery. It would also provide a platform to distinguish betwe en gift-giving
and bribery.
Keywords: bribery; mental element; gratuity; gift-giving
1. Introduction
There is global recognition that bribery is morally and legally wrong. Transactions
that give rise to bribery are often similar to the socio-cultural practice of showing
appreciation through gift-giving. Gifts are traditional forms of expressing
appreciation in Nigeria (Azenabor, 2007, p. 23). Bribery and gift-giving involve an
exchange of benefit between two or more persons. This makes it imperative to
differentiate between the two and clearly articulate the underlying mental element
which determines when gift-giving transforms into bribery.
1
Lecturer Grade I, Department of Public Law, Faculty of Law, University of Lagos, Lagos, Nigeria .
Address: 34-01. Lagos State, Nigeria. Tel.: +2348155489004, fax: +234(1) 493.2660. Corresponding
author: jidekate@hotmail.com.
AUDJ, vol. 10, no. 2/2014, pp. 69-87
Mental Element of Bribery under Nigerian
and Us (Federal) Anti-Bribery Laws: an
Overview
ACTA UNIVERSITATIS DANUBIUS Vol. 10, no. 2/2014
70
Corruption is a national problem in Nigeria (Osipitan & Oyewo, 1997, p. 257).
Bribery is one of the major manifestations of corruption in Nigeria (Iarossi &
Clarke, 2011, p. xi). Several anti-bribery laws have been enacted to address the
problem. These laws provide punishment of imprisonment for bribery. The
imposition of punishment is designed to achieve several objectives including
deterrence, rehabilitation, and the educative function (Okonkwo, 1992, p. 37). The
law can provide meaningful guidance and deter crime if the wrongfulness of the
conduct is captured by the mental elements of the offence. Thus, the attainment of
the educative objective of anti-bribery laws will depend largely on the extent to
which the laws clearly communicate the wrongfulness in bribery and make the
people come to see that it is wrong (Okonkwo, 1992, p. 37). Clarity would also
make the work of prosecutors and judges involved in trying cases of bribery less
complicated.
It is against this background that this article examines the definition of the mental
element of bribery under anti-bribery laws in Nigeria. The physical element of
bribery is usually defined simply in terms of giving or receiving money or any
other benefit or advantage in official transactions. The problematic aspect of
bribery is determining with clarity the prohibited state of mind. In other words
what makes the giving or receiving of money or any other benefit unconscionable
in the eyes of the law as to constitute bribery?
The first part of the paper is the introduction. The second part examines the mental
element of bribery under anti-bribery laws in Nigeria. The third part examines the
mental element of bribery under Federal anti-bribery laws in the United States of
America (US) with a view to exploring whether useful insights can be gained to
strengthen anti-bribery laws in Nigeria. Federal anti-bribery laws in the US have
been chosen because of the similarity between the provisions of anti-bribery
statutes in US and Nigeria The fourth part identify insight from US Federal anti-
bribery laws that can be utilised as basis to strengthen the definition of bribery in
Nigeria. Part five is the conclusion of the article.
2. Mental Element of Bribery in Nigeria
This part examines the mental element of bribery under the Criminal Code, the
Corrupt Practices and Other Related Offences Act ( Cap. C3 laws of the Federation
of Nigeria 2010 hereafter “ ICPC Act”), the Lagos Law and the Penal Code.

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