Between white collar crime and business efficacy -By Tayo Oke

Filed under: Forgotten Dairies |

Tayo Oke

 

If you ever wondered what sort of people get involved in criminal activities, your mind would have instantly been fixated on the usual criminal gangs on our streets, the armed robbers invading peoples’ homes at night or even in broad daylight these days, the kidnappers, marauding herdsmen, “area boys”, pickpockets etc. All of these conjure up a sardonic hold on our psyche; terrifying, rough and menacing. What if you were then told that the people who commit the most egregious financial crimes in this country do so from the comfort of their offices? They generally look like, and indeed, are respectable citizens, occupying positions of responsibility, making investment and business decisions affecting the lives of millions of citizens on a daily basis. These people do not generally appear rough or menacing, on the contrary, they are usually well-turned out in French and Italian suits, suave, articulate and approachable. They run businesses, they are corporate leaders, high-level civil service functionaries and community leaders. More often than not, they donate to charity and religious bodies, they are feted and hero-worshiped at high-society functions. Because they are not the archetypal violent criminals, they are referred to as “white collar” criminals. They wear clean shirts and blouses, and sit in air-conditioned offices whilst they engage in their nefarious, “victimless” crime. Victimless in the sense that they do not have to aim the gun at or kill anyone themselves, in the process.

White collar crime is the most dangerous, most intractable and most corrosive crime that exists in our society. Most dangerous because it is perpetrated by people who coat the crime with the veneer of respectability and authority, which indeed they exercise over thousands, if not millions of lives in society. Imagine, a business executive who raided his company’s pension funds for his or her own private use would be directly responsible for the subsequent misery that would befall the old and the frail senior citizens who may die in penury as a result. Or, a top government functionary who diverts money earmarked for ammunition to combat the Boko Haram terrorists, who then went on the rampage, killing scores of innocent citizens in towns and villages around the country because there were no sufficient arms to repel them. Is the government functionary concerned not worse than the terrorists? The only difference being that one sits in a fully air-conditioned office, in suit and tie, or flowing mufti, while the others take cover in the bushes and in the ravines.

Let us focus on the business world for the rest of the discussion here, first, because it attracts even less attention and less scrutiny by the public. Second, in order to highlight how one country, the United States of America, has enacted legislation that extends to Nigeria and other countries to combat the menace of white collar crime, and why, more than 40 years after the legislation was enacted, white collar crime appears to be on the rise, perhaps more than ever before.

In substance, “white collar crime” is somewhat of a catch-all phrase. Its parameters extend to: fraud, misrepresentation, customs, computer/wire fraud, securities, commodities, intellectual property, taxation and the like. The USA enacted the “Foreign Corrupt Practices Act” in 1977, which penalises American citizens who get involved in the crime whilst on business anywhere in the world. This also includes companies; any American-based company and entities that is subject to American law. What this means in practice is that even foreigners who bribe American citizens and companies can expect to face the wrath of the law upon entering into the United States if ever. Tough? Yes, until you consider the elements of the offence: First, to be guilty, one needs to make payment, offer, or promise of anything “of value”; to any foreign official; with corrupt intent; for the purpose of inducing such foreign official to use his influence with a foreign government or company to do any act in violation of the lawful duty of such official.

“Lawful duty” is the elephant trap in all this. It is an affirmative defence if the offer made to bend the potentially corrupt official was lawful under the “written laws” and regulations of the host country. It is equally a defence if the “payment” “gift” “offer” or “promise” of anything “of value” that was made was a reasonable bona fide expenditure such as travel and lodging expenses incurred by or on behalf of a foreign official. Here then is the rider. It is highly unlikely that any country’s written law would be so permissive as to sanction the act of bribing anyone. The legislation was carefully crafted to discount and disavow a whole load of cultural practices Americans deem anathema to business efficacy. For instance, handing the good old kola or a bottle of gin to someone who is about to render another one a huge service is culturally acceptable in Africa. It is an advance appreciation of the anticipated service one is about to receive. It is embedded in African culture like the “Thanks Giving” is in America. American authorities, nonetheless, frown on this, as they think it constitutes the gateway to bribery for us. But how is this different to an executive “package” often involving high-watering sums used to secure the services of an individual in American companies long before the individual has done a day’s work? They call that “incentive”.

In Africa, if you pay somebody a lot of money to leave their job to make way for another person, it is called bribery. In America, it is called “ex-gratia” payments or a “golden parachute” for an executive whose contract the company found difficult to terminate at will. And if a top government functionary enters into a scheme which diverts an investment commitment from a multinational company to his village with a whole load of tax benefits to the company concerned, what is this called in Africa? “Corruption” or “nepotism”? In America it is called a “gentleman’s agreement” or a “sweetheart deal”. You see, the “corrupt practices” the Americans decry so much in our economy, and openly flogging us for, have their origins in the USA itself. As a matter of fact, there is more corruption in the “land of the free; home of the brave” (USA), than it is in Nigeria. The difference being the level of sophistication involved on both sides. To employ a crude analogy with technology, one is digital, and the other still runs on the old analogue system. That said, this piece is in no way, tacitly or impliedly, an endorsement of corrupt practices of any kind in this country. It is merely designed to put the discussion in a different perspective and to stimulate a more critical examination of the menace in our society.

 

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