Introduction: Upon the inauguration of the Mohammadu Buhari administration the governments of the United States, United Kingdom, and Switzerland assured the federal government that stolen funds and assets stolen from Nigeria would be repatriated. Not only have these countries refused to cooperate with Nigeria they have also frustrated the efforts of the federal government to recover and repatriate such tainted funds and assets. In a display of sheer arrogance and hypocrisy in June last year the then British Prime Minister, Mr. David Cameron described Nigeria as “a fantastically corrupt country”. In his reaction to the embarrassing comment, President Buhari asked Mr. Cameron to return the stolen wealth of Nigeria in the United Kingdom.
The government of the United States has filed copious objections to the suit filed by Nigeria in Jersey for the recovery of over $3oo million of the Abacha loot. The gravamen of the objection is that the fund be released to the United States to manage on behalf of Nigeria. In the same vein, Switzerland has insisted that the sum of $321 million of the Abacha loot would not be repatriated to Nigeria unless the World Bank would be allowed to monitor the disbursement of the fund. Such patronizing attitudes of western governments which had cannot be justified having regard to the fact that they had connived with a few unpatriotic Nigerian public officials in the grand looting of the treasury of Nigeria.
In this paper, we shall examine the local and international legal instruments for asset recovery and the urgent need for the national assembly to pass the Proceed of Crime Bill into law. We shall conclude by calling on the labor unions and other civil society organizations to liaise with their foreign counterparts with a view to mounting pressure on countries that are frustrating the recovery and repatriation of the looted wealth of the Nigerian people. At the same time, the federal government would be called upon to comply with the order of the federal high court which has directed the federal government to account for the loot recovered since 1999.
What is Corruption?
The World Bank International Development Studies Report has described corruption as a type of crime (Lederman, Loayza, and Soares, 2006). Dimant (2013) argues that corruptions’ relationship with government sections, political establishments and other organizations of state differentiate corruption from other organized crimes. Perhaps, one may argue that to define corruption adequately, it is germane to perceive it as a complex universal occurrence. Thus, corruption involves a blend of varied actors with various interests, and it cannot be understood based on a singularized context. It covers wide-ranging networks of behavior and practices, which is exclusive and distinctive to various societies such as Nigeria. In essence, it is an abstruse with across-the-board explanations, making it particularly problematic to define. Perhaps the difficulty to define corruption is evident when Nigeria’s ex-President Goodluck Jonathan said on 10 February 2015 that: “stealing is not corruption.”[1] What then is corruption? To the average Nigerian cum politician, it is a symbol of blessing from God. For example, to the Nigerian gift giving might be an acceptable form of interchange which is proscribed in other States. Thus, due to its concept in Nigeria, the definition of corruption is woven with complexities. In a country where corruption is celebrated by the ruling class, a patriotic citizen who refuses to receive enticement (gesture of thank you) is regarded as a fool. Perhaps this explains the rationale of Chinua Achebe (1989: 14) when he perceptively stated in his applauded book: ‘A Man of the People’:
People themselves had become even more cynical than their leaders and were apathetic to bargain…let them eat, after all, when white men used to do all the eating did we commit suicide?… The important thing then is to stay alive… Besides, if you survive, who knows? It may be your turn to eat tomorrow.
In Nigeria, corruption broods at different ranks and is viewed as part of a cultural enigma that is socially recognized. Thus, one may argue that it is culturally determined and diverse from one state to another. However, one must state categorically that corruption is negative towards our society, as it procures the politics of patronage. Corruption could be considered as an indication of the institutional ineffectiveness of economic policies, weak economic competition, lack of security and economic opportunities for the people, dysfunctional education and the health sectors, weak civil service, lack of accountability of public funds and an increasingly democratic institution. Corruption can also give rise to conflict when it weakens the fabric through the misappropriation of resources.
Transparency and Accountability
Transparency and accountability are connected with the distribution of services to the people. It connects the process of how the state runs its system and carries out its policies. Accountability is now an important dialogue in public administration in Nigeria. There is an increasing focus on good governance and accountability in Nigeria. Transparency and accountability mandate government officials to act in the public interest, or in the interest of the people. Section 22 of the Constitution has imposed a duty on the mass media to promote transparency and accountability while section 24 thereof has enjoined all citizens to assist the law enforcement agencies to curb crimes in the society.
Accountability is a critical key to a healthy democratic state as it is the responsibility of the government to showcase to its citizens the process of how the taxpayers’ money is spent. Transparency and accountability are interconnected to the application of economic, political and administrative management of the affairs of a state. The exercise of these affairs is that they must be seen to be exercised by the citizens of a state. Accordingly, where a government parastatal such as the Nigerian National Petroleum Corporation (NNPC) is said to have failed to remit oil revenue to the tune of $20billion, issues of good transparency and governance becomes a crucial issue.[2]
Transparency and accountability in political office imply that elected government officials are conscientious and accountable for their decisions and actions and imbibe integrity, selflessness, and neutrality in order to ensure probity in service. Transparency and accountability in public services create confidence in the citizenry in terms of implementing governmental processes to promote the public good. It should be noted that accountability and transparency is centered on the free flow of information. A vital ingredient of accountability in any government is that the public must have access to information. Hence, Nigeria has enacted the Freedom of Information Act.
International Framework: United Nations Convention Against Corruption
Given the endemic phenomenon of corruption in the developing world, the United Nations has promulgated a Convention: the United Nations Convention against Corruption (UNCAC), 2005. Nigeria which is a signatory to the UNCAC ratified the Convention in December 2004.The UNCAC is the only legitimate obligatory universal anti-corruption document. The UNCAC comprises obligatory provisions as a mechanism to respond to a universal problematic. The UNCAC covers five main areas: preventive measures, criminalization and law enforcement, international cooperation, asset recovery, and technical assistance and information exchange. The UNCAC is a uniting ground for developed and developing states. However, a point of frustration in Nigeria is the difficulty it has experienced in recovering the Abacha loot tucked away in Switzerland. Nonetheless, the significant progress of criminalizing the offenders has been recorded in the Ibori and Alamieyesagha cases.
It is important to note that between 1999 and 2012, the sum total of $6.9 billion monetary sanctions on corruption were imposed internationally on various individuals with $5.9 of the said sum being imposed by a country other than the one in which the public official has been bribed. Of this only $197 million or 3.3% out of the total was returned or ordered to be returned to countries whose officials were bribed. From 2012-2016 the sum of $3.9 billion was imposed as sanctions of the said sums which were imposed on a country other than the ones whose officials have been bribed. Of this sum, only $7,046.197 or 0.18% has been returned to the countries whose official were bribed.
The universal standard of the UNCAC was determined in the case ofGogitidze & Others v Georgia,[3] the European Court of Human Rights (ECtHR) in paragraph 105 stated:
“Having regard to international legal mechanisms such as UNCAC and the forty Financial Action Task Force Recommendations (in addition to two Council of Europe Conventions), universal legal standards can be said to exist where:
a) The confiscation of property linked to serious criminal offenses such as corruption, money laundering, drug offenses and other offenses that generate proceeds of crime without the prior existence of a criminal conviction, is encouraged.
b) Confiscation measures may be applied to the direct proceeds of crime and also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other possibly lawful assets.
c) Confiscation measures may be applied to persons directly suspected of criminal offenses and also to any third parties which hold ownership rights without the requisite bona fide with a view to disguising their wrongful role in amassing the wealth in question.
Asset Recovery
A key innovation of the UNCAC is asset-recovery. This is a particularly central point for many developing countries such as Nigeria where corruption has plundered the national wealth, and where resources are badly needed for reconstruction and the rehabilitation of industries and promotion of the human rights of the citizens. Article 52 (1) states:
Without prejudice to article 14 of this Convention, each State Party shall take such measures as may be necessary, in accordance with its domestic law, to require financial institutions within its jurisdiction to verify the identity of customers, to take reasonable steps to determine the identity of beneficial owners of funds deposited into high-value accounts and to conduct enhanced scrutiny of accounts sought or maintained by or on behalf of individuals who are, or have been, entrusted with prominent public functions and their family members and close associates. Such enhanced scrutiny shall be reasonably designed to detect suspicious transactions for the purpose of reporting to competent authorities and should not be so construed as to discourage or prohibit financial institutions from doing business with any legitimate customer.
Article 52 (4) states that state parties banking sector are obliged to implement mechanisms to prevent banks from assisting corruption in their states and (5) states:
With the aim of preventing and detecting transfers of proceeds of offences established in accordance with this Convention, each State Party shall implement appropriate and effective measures to prevent, with the help of its regulatory and oversight bodies, the establishment of banks that have no physical presence and that are not affiliated with a regulated financial group. Moreover, States Parties may consider requiring their financial institutions to refuse to enter into or continue a correspondent banking relationship with such institutions and to guard against establishing relations with foreign financial institutions that permit their accounts to be used by banks that have no physical presence and that are not affiliated with a regulated financial group.
Article 5 of the UNCAC provides for financial disclosure systems:
Each State Party shall consider establishing, in accordance with its domestic law, effective financial disclosure systems for appropriate public officials and shall provide for appropriate sanctions for non-compliance. Each State Party shall also consider taking such measures as may be necessary to permit its competent authorities to share that information with the competent authorities in other States Parties when necessary to investigate, claim and recover proceeds of offenses established in accordance with this Convention.
A pragmatic approach for recovery of assets through international cooperation is provided under Article 54 (1) which states:
Each State Party, in order to provide mutual legal assistance pursuant to article 55of this Convention with respect to property acquired through or involved in the commission of an offense established in accordance with this Convention, shall, in accordance with its domestic law:
(a)Take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another
State Party;
(b)Take such measures as may be necessary to permit its competent authorities, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offense of money-laundering or such other offense as may be within its jurisdiction or by other procedures authorized under its domestic law; and
(c)Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
Criminalization
Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court, to extradite offenders. Countries are also required to undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption. Article 15 of the UNCAC states that:
Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses when committed intentionally:
(a)The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties;
(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.
In a concerted effort to give efficacy to this Convention, Nigeria has enacted criminal and non-criminalized legislations in respect of recovery of stolen assets or from the seizure of property. Before delving into stolen assets, it is trite to explore the law on recovery/forfeiture of assets from assets obtained through illegal activities.
No doubt, the UNCTAC has imposed a duty on members of the international community to assist each other in the recovery and repatriation of stolen fund and assets. But western countries which have benefited from the stolen money kept in their financial institutions have imposed impossible conditions to frustrate any form of recovery. Apart from retaining such looted wealth imperialist nations also use the Breton woods institutions to manipulate the economies of countries which are victims of corruption.
In the case of Nigeria, capital flight, illegal exportation of profits, tax evasion through shell companies, currency devaluation and dollarization of the economy are promoted by the Central Bank under the peripheral capitalist system operated by the federal government. The point I am struggling to make is that the limited gains recorded by the Buhari administration in the fight against corruption are a tip of the iceberg view of the massive capital flight that is legitimized by market forces.
Legal Framework for Forfeiture in Nigeria
Forfeiture proceedings are part and parcel of asset recovery procedure. The law and practice of forfeiture depend on the kind of crime and the statute being enforced to prosecute the crime. It is used as a legal mechanism to deprive criminals of the proceeds of their criminal activities.[4] Forfeiture proceedings are usually commenced in court where an application ex parte is filed. It can also be applied by way of seizure of property of a suspected criminal during the execution of a search warrant. The court may grant an interim forfeiture order pending the outcome of case where the subject pertains to the disputed property/funds. The conviction of the defendant is a sine qua non for procuring a final order for the forfeiture of the asset in question.[5]
An important aspect of forfeiture is—civil forfeiture. This is the forfeiture of assets that are not linked with a criminal element. The action under civil forfeiture based on the property/asset and not against the individual. In such a case the individual has not committed a crime. Forfeiture is permissible when the property is the subject matter of forfeiture. It is, however, important to note that an action for civil forfeiture can be commenced before during, or after a criminal conviction. In essence, a conviction is a prerequisite under criminal forfeiture but a conviction is not essential under civil forfeiture. Forfeiture could also be permissible when property is to be forfeited in order to recompense for loss.[6] According to Professor Adekunle (2011:20-21), the basic requirements of forfeiture are:
1. The ability to trace assets subject to forfeiture or proceeds of crime in whatever form;
2. The ability to restrain by judicial order dealings on such assets; and
3. Statutory authorization of a judicial body to issue a final forfeiture order over assets that have been restrained or which have been traced. [7]
There is an absence of a forfeiture law in a distinct legal framework in Nigeria. In view of the urgent need to chart the law in Nigeria in respect to forfeiture of assets in respect of unlawful activities, it is hoped that the national assembly will pass the Proceed of Crime Bill into law. However, I shall proceed to examine the provisions of the laws being currently applied by the anti-graft agencies:
1. Corrupt Practices And Other Related Offences Act (COPROA) (2000).
The Act seeks to proscribe and recommend punishment for corrupt practices and other related offenses. Furthermore, it establishes an Independent Corrupt Practices Commission (ICPC) conferring it with the responsibility for investigation and prosecution of offenders. The COPROA, prohibits bribery and corruption and sets out punishment for those who contravene its provisions with either terms of imprisonment or fines, or both imprisonment and fines and with the seizure of assets. Notably, section 19 states:“Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer shall be guilty of an offence and shall on conviction be liable to imprisonment for five (5) years without option of fine.”COPROA provides for the restraint/seizure proceedings. Interim powers to seize assets during the investigation are provided under section 37-38. Specifically, section 37 (1)provides: “If in the course of an investigation into an offense under this Act any officer of the Commission has reasonable grounds, to suspect that any movable or immovable property is the subject matter of an offense or evidence relating to the offense he shall seize such property.” Section 38(3) (a) allows an officer of the ICPC to reinstatement temporarily seized property under the Act, subject to the owner approving to terms and conditions being imposed and conditional to the provision of a security. In respect to recovery of stolen assets, section 47 states:
(1) In any prosecution for an offense under this Act, the court shall make an order for the forfeiture of any property which is proved to be the sub-matter of the offense or. have been used in the commission of the offense where-
(a) the offense is proved against the accused, or
(b) that the accused is not the true and lawful owner of such property; or
(c) that no other person is entitled to the property as a purchaser in good faith for valuable consideration.
(2) Where the offence is proved against the accused or the property referred to in subsection (1) has been disposed of, or cannot be traced, the court shall order the accused to pay as a penalty a sum which is equivalent to the amount of the gratification or is, in the opinion of the court, the value of the gratification received by the accused, and any such penalty shall be recovered as a fine.
2. Failed Banks Recovery of Debts and Financial Malpractices in Banks Act(Cap F2, LFN 2004)
This Act deals with bank insolvency. The Act was promulgated to recover debts owed to failed Banks which had continued to be outstanding at the time the banks were declared to be liquidated. Furthermore, the Act is empowered to indict directors and officers of banks who had committed banking offenses. Section 3 enables the court to oversee the property of a nonpayer or accused person if there is an apparent or pending case against that person. The Act also authorizes a bank manager to place a restriction on the person’s accounts, or by making an order depriving the person of direct control of the property in question. The asset recovery clause is found in section 5 which states:
Notwithstanding anything to the contrary in any law, deed, agreement or memorandum of understanding, the Court shall have exclusive jurisdiction to hear and determine all matters brought before it concerning the recovery from any person of any debt owed to a failed bank, which remains outstanding as at the date of closure of the business of the failed bank.
Section 11 gives teeth and grit to section 5. It states that:
(1) A property against which an order is made under section 9(2) of this Act shall, with the concurrence of the Receiver or Liquidator, be sold by auction or by private contract and the money obtained from the sale shall be applied in accordance with the provisions of this section.
(2) Where a property is sold under subsection (1) of this section, the Court shall execute an instrument to transfer, convey or assign the property to the purchaser or in any other way vest the property in the purchaser.
(3) An instrument executed under subsection (2) of this section shall be conclusive proof of title of the purchaser and shall, where necessary, be a registerable instrument under the various registration laws, without the consent required under sections 21, 22 and 26 of the Land Use Act.
3. Advance Fee Fraud and other Fraud Related Offences Act, (2006)
This Act safeguards the private and public sphere from advanced fee fraud popularly called (419). The grit of this piece of legislation is found in EFCC v. Allison Madueke[8]where the Federal High Court Lagos ordered the temporary forfeiture of a $37.5 million property on Banana Island, Lagos, and a whopping amount of millions of dollars belonging to the former Minister of Petroleum Resources, Diezani Allison-Madueke. Notably, section 11 of the Act provides for restitution by a person convicted of fraud:
In addition to any other penalty prescribed under this Act, the High Court shall order a person convicted of an offense under this Act to make restitution to the victim of the false pretense or fraud by directing that person-
(a) where the property involved is money, to pay to the victim an amount equivalent to the loss sustained by the victim; in any other case –
(i) to return the property to the victim or to a person designated by him; or
(ii) to pay an amount equal to the value of the property, where the return of the property is impossible or impracticable.
(2) An order of restitution may be enforced by the victim or by the prosecutor on behalf of the victim in the same manner as a judgment in a civil action.
Furthermore, a remarkable clause in Act is the authorization for the courts’ to order forfeiture without conviction. Section 17 (1) empowers the Economic and Financial Crimes Commission to make an order of forfeiture without conviction for an offense:
Where any property has come into the possession of any officer of the Commission as unclaimed property or any unclaimed property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crime Commission Act of 2004, the High Court shall upon application made by the Commission, its officers, or any other person authorized by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this subsection make an order that the property or the proceeds from the sale of such property be forfeited to the Federal Government of Nigeria.
4. Economic and Financial Crimes Commission (Establishment) (EFCC) Act (2004)
The magnitude of corruption in high places, money laundering, economic crimes and the Advance Fee Fraud (419), as discussed above, has inhibited Nigeria’s economic growth has caused an indelible stain on Nigeria’s national image and identity. This menace led to the establishment of the Economic and Financial Crimes Commission (EFCC). The legal instrument in support the Commission is the EFCC (Establishment) Act 2004.Section 46 of the Act defines economic and financial crimes to be:
the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc.;
Section 20 of the Act states that properties of a person convicted of an offense under this Act and which have been acquired from an illegal Act and subject of an interim order shall be forfeited to the Federal Government. Section 20 provides:
(1) A person convicted of an offense under this Act shall forfeit to the Federal Government –
(a) all the assets and properties which may or are the subject of an interim order of the Court after an attachment by the Commission as specified in section 26 of this Act;
(b) any asset or property confiscated, or derived from any proceeds, the person obtained directly or indirectly, as a result of such offenses not already disclosed in the Assets Declaration Form specified in Form A of the Schedule to this Act or not falling under paragraph (a) of this subsection;
Jurisdiction and special powers of the court
Forfeiture after conviction in certain cases
Schedule
(c) any of the person’s property or instrumentalities used in any manner to commit or to facilitate the commission of such offense not already disclosed in the Declaration of Assets Form or not falling under paragraph (a) of this subsection.
Section 21 of the Act 21 provides for recovery from a convicted person of assets in a foreign country acquired as a result criminal activity. However, such recovery of assets or properties, are subject to any treaty or arrangement with such foreign country. The assets in question are to be forfeited to the Federal Government. Particularly, section 21 states that:
For the avoidance of doubt and without any further assurance than this Act, all the properties of a person convicted of an offense under this Act and shown to be derived or acquired from such economic or financial crime and already the subject of an interim order shall be forfeited to the Federal Government.
It is worthy to note section 26 (1) which provides for the forfeiture of assets of persons who are arrested “Where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an interim attachment order by the Court.” It is also useful to note Section 24 in respect of property subject to forfeiture. The section states:
(a) Whether real or personal, which represents the gross receipts a person obtains directly as a result of the violation of this Act or which is traceable to such gross receipts;
(b) Within Nigeria which represents the proceeds of an offence under the laws of a foreign country within whose jurisdiction such offense of activity would be punishable by imprisonment for a term exceeding one year and which would be punishable by imprisonment under this Act if such act or activity had occurred within Nigeria, is subject to forfeiture to the Federal Government and no other property rights shall exist on it.
It is worthy to note section 26:
(1) Any property subject to forfeiture under this Act may be seized by the Commission in the following circumstances –
(a) the seizure incidental to an arrest or search; or
(b) in the case of property liable to forfeiture upon process issued by the Court following an application made by the Commission in accordance with the prescribed rules.
5. Code of Conduct Bureau and Tribunal Act
The Code of Conduct Tribunal is a product of the 1999 Constitution (as amended). The Tribunal was created to ensure integrity in public service by enforcing the code of conduct for public officers. Constitution of the Federal Republic of Nigeria 1999 (as amended) under paragraph 15(4) of the 5th schedule which provides that “the National Assembly may by Law confer on the Code of Conduct Tribunal such additional powers as may appear to it to be necessary to enable it more effectively discharge the functions conferred on it in this schedule”. The National Assembly confers criminal jurisdiction and authorizes the Attorney General of Federation to prosecute charges against public officers who corruptly enrich themselves. Section 23(2) of the Act provides that the seizure and forfeiture to the State of any property acquired in abuse or corruption of office, following a finding of guilt by the tribunal. Section 23 (2) (c) provides for the powers of the Tribunal to impose punishment in respect to seizure and forfeiture to the State of any property acquired in abuse or corruption of office.
6. National Drug Law Enforcement Agency Act (N30 Laws of the Federation of Nigeria), 2004
Nigeria is the nucleus of African narcotics trafficking. Nigeria has a vast number of cartel based organizations linked with international drugs trafficking. Nigerian trafficking cartels distribute illegal drugs throughout the world. The National Drug Law Enforcement Agency (NDLEA) is an agency Nigeria responsible for eradicating the growing, processing, manufacturing, selling, exporting, and trafficking of hard drugs. The agency is authorized the National Drug Law Enforcement Agency Act.
Section 27 states that:
Any person convicted of an offense under this Act shall forfeit to the Federal Government
a. All the assets and properties which may or are the subject of an interim order of the Federal High Court after an attachment by the Agency as specified in section 34 of this Act:
(b). Any asset or property constituted or derived from, any proceeds the person obtained directly or indirectly, as a result of such offense not already disclosed in the Assets Declaration Form or not falling under paragraph (a) of this subsection;
(c.) Any of the person’ property or instrumentalities used in any manner to commit or to facilitate the commission of such offense not already disclosed in the assets Declaration form or not falling under paragraph (a) of this subsection
2. The Federal High Court in imposing sentence on such person shall order, in addition to any other sentence imposed pursuant to section 11 of this Act, that the person forfeit to the
Federal Government all property described in subsection (1) of this section
3. In this section, “proceeds” means any property derived or obtained, directly or indirectly, through the commission of the offense.
Furthermore, section 28 states that: For the avoidance of doubt and without any further assurance than this Act, all the properties of a person convicted of an offense under this Act and already the subject of an interim order shall be forfeited to the Federal Government. It is important to note section 33:
Any property subject to forfeiture under this Act may be seized by the Agency in the following circumstances:
a. If the seizure is incidental to an arrest or search:
b In the case of property liable to forfeiture upon process issued by the Federal High
Court following an application made by the Agency in accordance with the prescribed rules.
2. Whenever property is seized under any of the provisions of this Act, the Agency may:
a. Place the property under seal or
b. Remove the property to a place designated by the Agency
3. Property taken or detained under this section shall be deemed to be in the custody of the Agency, subject only to orders of the Federal High Court.
7. The Administration of Criminal Justice Act, 2015 (ACJA)
The Administration of Criminal Justice Act, 2015 (ACJA) has augmented the existing legislations on asset recovery. An innovation of the ACJA is found in section 80 which states that:
A Judge or a Magistrate may, at any time after action has been taken under section 41 of this Act or on an application made in that regard after summons or warrant has been issued but disobeyed, order the attachment of any property, movable or immovable or both, belonging to a suspect the subject of the public summons or warrant.
Furthermore, it is worthy to note section 81 (1) states that:
An order under section 80 of this Act shall authorize a public officer named in it to attach any property belonging to a suspect named in the order as the owner of the property within the area of jurisdiction of the Judge or Magistrate by seizure or in any other manner by which for the time being the property may be attached by way of civil process.
(2) Where a suspect who is the subject of an order does not appear within the time specified in the public summons, the property under attachment shall be at the disposal of the court.
(3) Any property under attachment shall not be sold until the expiration of three months from the date of the attachment unless it is subject to speedy decay or the Judge or Magistrate considers that the sale would be for the benefit of the owner, in either of which cases the judge or Magistrate may cause it to be sold whenever he thinks fit.
By virtue of section 82, provides for restoration of attached property:
82.(1) Where within one year from the date of the attachment, a suspect, whose property is or has been at the disposal of the Court under section 80 of this Act, appears voluntarily or being arrested is brought before the Court and proves to its satisfaction that he:
(a) did not abscond or conceal himself for the purpose of avoiding execution of the warrant; and
(b) had no notice of the public summons or warrant as to enable him to attend within the time specified therein, that property, so far as . it has not been sold, and the net proceeds of any part of it which has been sold shall, after satisfying from the proceeds all costs incurred in consequence of the attachment, be delivered to him
Section 153 (1) of ACJA provides for the detention of articles recovered during a search warrant and that the seized articles be released to the owners. The ACJA also provides for forfeiture of property on conviction of a defendant or a surety. Section 182 provides:
(1) Where a recognizance to keep the peace and be of good behaviour or not to do or commit some act or thing, has been entered into by a defendant as principal or as surety before a court, a court, on proof that the person bound by the recognizance as principal has been convicted of an offence which is by law a breach of the condition of the recognizance, may order that the:
(a) recognizance be forfeited; and
(b) persons bound by it, whether as principal or as sureties or any of those persons, shall pay the sums for which they are respectively bound.
A key aspect of the ACJA is in respect of seizure, forfeiture, confiscation and destruction of instrumentality of crime and the seizure of things intended to be used in commission of crime. Section 333 states that the Court may:
(a) order the seizure of any instrument, material or thing which there is reason to believe is provided or prepared, or being prepared, with a view to the commission of an offence triable by the court; and
(b) direct the instrument, material or thing to be forfeited, confiscated, held or otherwise dealt with in the same manner as property under section 336 of this Act.
Destruction of seditious, prohibited or obscene publications and of obscene objects
334.(1) Upon a conviction for an offence relating to obscene publication, the court may order the confiscation and destruction of all the copies of the publication or thing, including those that remain in the possession or power of the convict.
In addition, section 333 of the ACJA states that:
337. (1)The seizure by the police of property taken during arrest or investigation under this Act, or alleged or suspected to have been stolen or found in circumstances which create a suspicion of the commission of an offence, shall, within a period not exceeding 48 hours of the taking of the property or thing, be reported to a court, and the court shall make an order in respect of the disposal of the property or its delivery to the person entitled to its possession or such other orders as it may deem fit in the circumstances.
8. Customs and Excise Management Act (CEMA) 2011
The Customs and Excise Management Act (CEMA), 2011, authorizes the management and collection of duties of custom and excise. CEMA reflects the realities of modern-day international trade. Part XIII of CEMA explicitly provides for forfeiture and seizure. Section 168 provides
Forfeiture of excisable goods Where, by or under any provision of this Act, goods of a kind subject to excise duty become liable to forfeiture by reason of some offence committed by an excise trader, but such goods are not available for forfeiture, the Board may seize from the stock of that trader goods of that kind to such quantity as would attract the same amount of duty as the amount of duty on the goods liable to forfeiture.
The above laws have proactive legislation that enables the court to seize asset that are alleged to be proceeds or tools of crime. The legislature also allows law enforcement officers to seize property on suspicion of the commission of certain crimes. Most of the laws state that the property can be forfeited to the government upon conviction of the defendant. However, in some instances forfeiture to the government can arise without criminal prosecution.
At this point, one must mention that the Money Laundering (Prohibition) Act, (MLPA) 2011 (As Amended). The MLPA mandates that financial and designated non-financial intermediaries establishment to confirm the identity and source of funds of prevailing and prospective customers (sections 3 and 4); Authorisation of special reporting where a business transaction seems to be suspicious (section 6); Requiring financial institutions to give feedbacks on transactions above one million naira for individuals; N5 million for corporate bodies. However, the MPLA is not proactive as it does not have any provisions against forfeiture of assets. However, the EFCC have wide powers of investigation and enforce under its powers to cover the forfeiture of assets in respect of laundered money.
Corruption and Lack of Transparency and Accountability
Convinced that the federal government was chasing the shadow in the fight against corruption I have had cause to petition the Economic and Financial Crimes Commission to open the allegations of corruption which border on crimes against humanity. In the said petition I alleged as follows:
1. From five cycles of independent audit reports covering 1999-2012, the National Extractive Industries Transparency Initiative revealed that the Nigerian National Petroleum Corporation, some oil companies, and certain agencies of the Federal Government have withheld $20.2 billion from the Federation Account.
2. In 2006, the Central Bank of Nigeria removed $7 billion from the nation’s external reserves and placed same as a deposit in 14 Nigerian banks. In 2008, the Bank gave a bailout of N600 billion ($4 billion) to the same banks. Up till now the CBN has failed to recover the said sum of $11 billion from the banks
3. On September 6, 2016 the Nigerian National Petroleum Corporation (NNPC) announced that arrangements had been concluded to recover the sum of $9.6 billion in over-deducted tax benefits from joint venture partners on major capital projects and oil swap contracts. The NNPC is said to have recovered the said sum of $9.6 billion but has not same remitted same into the Federation Account.
4. Sometime in 2009, Mobil Oil Producing Nigeria Unlimited applied to the Federal Government for the renewal of three oil blocks. Upon granting the application, the NNPC asked Mobil to pay the sum of $2.5 billion for the renewal of the licenses. Curiously, the $600 million paid by Mobil was accepted by the Federal Government. What then has happened to an outstanding sum of $1.9 billion which ought to be recovered from Mobil and paid into the federation account?
5. From 1998-2014, the Federal Government collected over $4 billion from the estimated $5 billion stolen by a former military ruler, the late General Sani Abacha. The office of the Accountant-General should be asked to account for the recovered loot. Furthermore, the moves to recover the remaining loot of about $800 million are being frustrated by Swiss and United States governments.
6. The $470 million contract awarded to ZTE, (a Chinese company) in 2009 by the Federal Government for the construction of CCTV cameras in Abuja and Lagos has been abandoned. Since the contract was not executed what then has happened to the $470 million?
7. In the Appropriation Act of 2011, the sum of N245 billion was earmarked for fuel subsidy. In violation of the law federal ministry of finance and the Central Bank fraudulently paid out N2.5 trillion to a cabal of fuel importers. Although the EFCC has charged some suspects to court the whole fraud ought to be revisited as the investigation into the monumental fraud was compromised by the Jonathan administration.
8. The federal government has confirmed that the 60.2 million barrels of crude oil shipped from Nigeria and discharged at the Philadelphia port in the United States from January 2011 to December 2014 were not recorded locally. The value of the stolen crude oil is $12.7 billion. The EFCC ought to be directed to recover the $12.7 billion from the shipping and oil companies that carried out the fraud. If the investigation of the stolen crude oil can be extended to other ports in the United States, China, India, France, United Kingdom etc Nigeria may be able to recover not less than $200 billion during the same period.
9. It has been established by the office of the Attorney-General of the Federation that MTN illegally transferred the sum of $13.9 billion out of Nigeria. The huge fund should be recovered while the economic saboteurs involved in the illicit transfer should be prosecuted.
It is imperative for the EFCC to conduct an investigation into the colossal fraud and recover the huge proceeds of the economic and financial crimes to the States’ coffers.It is of vital importance to chart how the legislation has promoted transparency and accountability by forfeiture of stolen assets from property obtained through illegal activity. It is expedient to start from the protection accorded by international law
Proposals for Reform
In charting proposals for reform the UNCAC in a meeting held in Addis-Ababa from the 14-16th of February 2017, by the Civil Coalition Society, the NGO made recommendations to the United Nations on management and disposal of stolen assets. A few Articles of UNCAC were picked to ensure that the return of the stolen assets could be put in beneficial use to the countries concerned. It was suggested that Article 9 could be put in as it provides a clear-cut all embracive and people representative outlook as regards principles for the management, return and implementation of stolen assets to the poorest sections of the society or sectors most affected by corruption in line with Sustainable Development Goals (SDGs).
It was proposed that Civil society groups (CSOs) and NGOs in conjunction with the government should encourage and promote active participation and pro-activeness of these bodies, individuals and other relevant groups towards the active role and participation in asset recovery and return. This is provided for under Article 13 of UNCAC. In pursuance of Article 51 of UNCAC, in line with the principles for managing and disposing of recovered and returned stolen assets, such stolen assets that are recovered, if from a foreign country, should be returned to the country of origin. It is a fundamental principle under UNCAC and so must be strictly adhered to and observed.
In pursuance of Article 9(2) and 13 which provide that countries involved in the asset recovery to include both returning and receiving countries, should apply by mutual agreement the highest standards of accountability and transparency before, during and after the recovery and return process. This, however, should include publication of amounts recovered and returned, the date the money is to be returned, a process of return, identity of individuals or bodies representing both returning and receiving countries. This publication should be made on media outlets with both local and international recognition in the countries involved.
Furthermore, both returning and receiving countries are required to apply the tenets of accountability and transparency towards management and disposal of the returned stolen assets in line with Article 9. In addition, a detailed and audited report on how such funds are returned should be made to the relevant legislative arm of the receiving country and published in both countries involved.
The essential core behind the ideals of the recovery of stolen assets is its return is to remedy or solve the devastating impact that such theft and invariably corruption has in the society at large. Thus, relevant measures should be put in place to this effect to include relevant alternatives, succor, and replacements of assets lost as a result of the removal from the returning country and the preceding economic impact it may have or may have had on the receiving country.
One of the Sustainable Development Goals is to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” Thus, there is an immense role to play in identifying the remedial implications and effects of stolen assets return. Therefore, Nigerian citizens through representative government should actively be involved in the decision making process in the transparency and accountability process on how forfeited money is used.
Neutral multinationals, skilled in asset management, accounting and audit and implementation should be invited into the receiving country to ensure implementation of stolen assets to the relevant sectors of the economy for sustainable development. Statutes should be enacted both locally and internationally to ensure that such bodies be given the legal impetus, independence and free access to tools required to carry out their duties and responsibilities as this will ensure neutrality and impartiality in their dealings.The question then arises: What happens where a returning or receiving country is non-compliant with the UNCAC rules? It is strongly suggested that a more radical approach be adopted towards enforcement of extant provisions of the UNCAC such as enactment of rules of enforcement or execution of bilateral and multilateral agreements by concerned countries as corruption is a global pandemic. In Nigeria for example, section 12 of the CFRN 1999 (as amended) provides for domestication of international treaties and conventions. Nigeria, however, has taken substantial steps towards its domestication and has lived to its expectations in this regard but how adequately has this been adhered to. We need to take the bull by the horn by moving a step further from mere domestication of such rules to the entrenchment of the relevant provision of the UNCAC into our “Grund norm”-the Constitution.
The use of settlements and its implications with respect to stolen assets recovery cannot be overemphasized. Settlements or agreements are usually made between the countries in question regarding the stolen assets recovery provided for under the UNCAC. It is a means of negotiation geared towards the return of the stolen assets. However, settlements, as suggested, should undergo as of a requirement a ‘baptism of fire’ through a litmus test of transparency, accountability, impartiality and the full assessment of the harm caused by the debilitating impact or effect of corruption and that requisite compensation and remedy for that harm and its effect is specifically implemented and resolved.A new method lies in the ‘open government-model’. This method is ideal for people-oriented participation in politics. Here network services can be used by the government to inform the people how it is collating ‘stolen money’ stashed away in foreign banks. The ‘open government-model’ can promote accountability and transparency as a means for achieving progress on development across all sectors of the economy, proactive democratic governance and pre-emptive civil society organizations’ involved in transparency and accountability. It could also be used to challenge legal frameworks for understanding whether they are effective. It is suggested that transparency and accountability should be showcased by ‘virtual reality’. This process entails putting government efforts at recovering stolen money in real time. E-participation to access transparency and accountability can disclose to the citizens of Nigeria whether its government is operating its legal framework in respect of stolen assets.
Conclusion
From the foregoing, it is undoubtedly clear that the governments of western countries and the United Arab Emirates are not going to co-operate with Nigeria in the repatriation of the nation’s looted unless the Federal government is prepared to adopt appropriate diplomatic and legal measures. In addition, the labor unions and other civil society organizations in the affected countries have to be mobilized to mount pressure on their governments to return our looted wealth.
Instead of piling up external loans the federal government should be compelled by the Nigerian people to embark on the immediate recovery and repatriation of hundreds of billions of dollars from the NNPC, multinational corporations and countries that illegally keeping the looted wealth of the country. The recovery of our looted wealth should be extended to the few Nigerians who have been indicted in the Panama and Paradise papers. The EFCC and the Federal Inland Revenue Service should recover appropriate taxes from the offshore companies set up by such individuals.
Promoting Transparency And Accountability In The Recovery Of Stolen Assets In Nigeria: Proposals For Reform By Femi Falana
