We have witnessed impunity at its zenith or pinnacle. We beheld a government that shockingly defined corruption from the very narrow prism of only the looting of public funds.
Last week, we started our discourse on the above vexed issue. We have so far seen how the Buhari government is a clear indication that neither he nor his All Progressive Congress (APC) ruling party was actually ready or prepared for governance when they deceived Nigerians in their 2014 – 2015 campaigns. Today, we shall be concluding same. Thereafter, we shall continue with the issue on institutionalizing the war against corruption – new approaches to assets tracing and recovering (part 3).
We have witnessed the unabashed diminishing and bastardisation of national institutions, enthronement of mediocrity and celebration of strongmen, rather than the building of strong institutions. We have witnessed Customs CG and IGP audaciously refusing to appear before the Senate to answer questions about their operations, and damning the consequences. Of course, nothing happened to them. We have seen massive withdrawals and expenditure of public funds without passing through laid down constitutional safety valves as provided for in sections 80, 81, 82, 83, and 162 of the Constitution. We have witnessed impunity at its zenith or pinnacle. We beheld a government that shockingly defined corruption from the very narrow prism of only the looting of public funds. The government incredulously argues and believes that cases of forgery, serial constitutional breaches that deserve immediate impeachment, lopsided, ethnocentric and clannish appointments, and protection from prosecution of high-heeled persons in government do not constitute corruption. They do not believe that subversion of the electoral process, vote-buying and use of crude coercive force to rig elections constitute corruption. They cannot understand or come to terms with the reality that one of the greatest forms of
corruption is denying solemn promises you made to the citizens during your election campaigns, promises that made the citizens vote for you in the first case. They refuse to understand that disobedience to court orders, government’s violation of the fundamental rights of citizens, subversion of the rule of law, opaqueness in governance and barefaced lies and deceit are some of the worst forms of corruption. But the nagging questions are: who will police the police? Who will guard the guard? When will the falcon hear the falconer? When is the government going to halt “things fall apart,” so that the “centre can … hold”? God bless the soul of Chinua Achebe, the famed epic novelist and author of “Things Fall Apart” and “The Trouble with Nigeria”.
– The End –
Institutionalising the war against corruption – New approaches to assets tracing and recovering (3)
Few weeks ago, I decided to take excerpts from a paper I presented at the just-concluded NBA Conference held on August 29, 2018. Today, I will shed more light into the above discourse.
As already established, fighting corruption is not just about the existence of laws but the application of same without fear or favour, this is the true spirit of institutionalization. Mike Ozekhome in his paper “The A-Z and 24 ‘do’s’ and don’ts of how to fight corruption” gave a practical approach on how corruption should be fought or how the fight can be institutionalized. He emphasized that strong institutions must be built rather than building strongmen as the former lasts while the latter is ephemeral. We shall quickly highlight some of his points here as time will fail to properly elucidate on each of these points. They are:
For Nigerians to buy into the anti-corruption war, the lopsidedness of anti-corruption war must be halted. The ambivalence, selectiveness and contradictions inherent in the anti-corruption fight must be stopped; Anti-corruption agencies such as EFCC and ICPC must stay neutral, be transparent and accountable to Nigerians. They must render account of all monetary and property recoveries so far made; The anti-corruption agencies must recognise that the EFCC, ICPC and Police Acts and the Administration of the Criminal Justice Act are mere statutes, which are subject to the Nigerian Constitution, and should, therefore, stop elevating these Acts above the Constitution; The President must make example of government officials serially accused of corruption by prosecuting them rather than offering them protection or shielding them from being investigated on tried, as this will give the notion of credibility in the fight against corruption; Court orders must be obeyed, selective obedience of court orders must be discouraged. Failure to obey court orders will only cause chaos and anarchy; Anti-graft agencies must desist from forum shopping as it reduces their worth and demystifies them; Stop fouling your anti-corruption laboratory, halt the orchestrated denigration of the judiciary and the legal profession; Anti-graft agencies must recognize that they cannot win every case with brute force, therefore, they must stop terrorizing and writing petitions against judges who ruled against them and stop re-arraigning acquitted defendants in other courts, these make them dirty and vindictive; Anti-graft agencies must
uphold the rule of law and respect for fundamental rights as these rights are inalienable and sacrosanct; Anti-graft agencies must stop media trial and undue sensationalism, they do not cases win, but permanently stigmatize suspects; Anti-graft agencies must investigate thoroughly before arrest; they should not arrest before fishing for evidence, it is inhuman and degrading; Anti-graft agencies must admit the fact that no prosecution can ever succeed without water-tight investigation, the court room is not the theatre of the absurd; The executive must learn to accept the doctrine of separation of powers in our constitutional democracy, you cannot appropriate the three arms of government; Anti-graft agencies must be creative as regurgitation of case law principles without matching them with peculiar facts can never fly. Each case is authority for what it decides; Anti-graft agencies must stop being vindictive towards lawyers for defending clients, it is a constitutional right; Anti-graft agencies must stop wiretapping clients-lawyers’ discussions: it diminishes your worth and makes them a bully; Anti-graft agencies must recognize and admit that fighting corruption and respecting fundamental rights are not mutually exclusive. Finally, anti-graft agencies must recognize and admit that Nigeria belongs to us all, not to only a privileged few.
New Approaches to Assets Tracing and Recovering
Assets tracing and recovery simply connotes the process of tracking or following up, or carrying out an inquiry about assets, which are suspected to have been illicitly acquired, and retrieving same. The doctrine has its origin at common law and only possible to apply when assets (property) are certain and identifiable. Thus, where the assets (property) have become mixed with other properties in a pool, the assets become no longer certain, which makes tracing impossible. In the early case of TAYLOR v. PLUMER, the court stated thus:
“at common law it is not possible to trace through mixed funds, thus where the asset can no longer be ascertained to represent the original property, perhaps where the subject is converted into money and mixed with other monies, the rule of tracing at common law becomes extinguished – this is because money has no earmark and thus cannot be distinguished within a mixed fund.”
As a result of the deficiencies of assets tracing and recovering under the common law, equitable principles evolved to provide a more flexible approach, therefore in equity even where the property or assets have been mixed up, as long as their remains a link linking the assets to the pool of assets now mixed up, the principles of equity will reach into the mixed fund to recover it. In AGIP (AFRICA) LTD v. JACKSON the court heard thus:
“Equity…will follow money into a mixed fund and charge the fund. There is, in the present case, no difficulty about the mechanics of tracing in equity. The money can be traced through the various bank accounts to baker oil and onwards”
In today’s Nigeria, money laundering is now seen as one of the most pervasive economic crimes. According to Global Financial Integrity, there were about $854 billion of illicit financial outflows in Africa between
1970 and 2008 and Nigeria had the biggest share of that sum. These outflows are either stashed away in foreign accounts or invested in properties within or outside the sores of the country; therefore it becomes very necessary to have legislations or policies geared towards tracing and recovering of these illicit wealth.
Tracing and recovery of assets is very important, no wonder the global attention it. Therefore in analyzing Nigeria’s approach to assets tracing and recovering it is expedient to first take a look at the global framework for assets tracing and recovering to get a proper view of the subject matter.
On the global front, there have been some efforts towards assets tracing and recovering, these efforts has produced some international instruments which are very instructional in this discuss. They will briefly be espoused on here below.
United Nations Convention against Corruption (UNCAC)
The UNCAC was adopted by the General Assembly following its resolution 58/4 of 31 October 2003 and it entered into force on 14 December 2005. It has been signed by more than 140 countries and ratified by more than 130 countries. Nigeria ratified UNCAC on 14 December, 2004. The purpose of the convention is provided for under Article 1. Article amongst other things provides thus:
To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;
One of the major or fundamental principles of the UNCAC is asset recovery which is contained in Article 51 thus:
The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.
The Convention makes provision for measures to prevent money laundering and requires that States Parties supervise and regulate financial institutions in order to monitor the movement of cash and negotiable instruments across borders and also obliges States Parties to enact domestic legislation criminalizing the laundering of corruptly-acquired assets. It further encourages States Parties to enact domestic laws establishing measures and procedures for the identification, tracing, freezing and confiscation of assets which are the proceeds or instrumentalities of crimes defined in the Convention. With respect to proceeds of crime which have been transformed into other property, it further provides that such proceeds also shall be liable to freezing or seizure and confiscation. The same measure applies to proceeds which have been intermingled with assets acquired from legitimate sources.
Article 37 obliges States Parties to adopt measures necessary to elicit from suspects information required for purposes of investigation and evidence. Such measures, which are in the form of incentives, include mitigating punishment of suspects who have co-operated substantially in the investigation or prosecution of an offence or even granting immunity from prosecution in such circumstances. The same applies where the suspect gives such cooperation to the competent authorities of another State Party. Article 38 provides for co-operation among law enforcement authorities and public officials in the supply of information required for evidence and investigation. To be continued.
Thought of the week
“Democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation.” (Atifete Jahjaga)