President Buhari, Sign The Proceeds of Crime Bill Into Law -By Bámidélé Adémólá-Olátéjú

Filed under: Democracy & Governance |
Bámidélé Adémólá-Olátéjú

Bámidélé Adémólá-Olátéjú

 

Nigeria needs a wide-ranging piece of legislation that will lead to the prosecution of any person who has laundered the proceeds of crime. The full strength of the legislation will be a powerful new tool in the battle against bribery and other related forms of corruption. It will help prosecutors target criminal assets, cut the profits from crime and increase the risk for those who indulge in criminal activities.

A Tafa Balogun steals, gets paraded, cuts a deal and gets a slap on the wrist. A Maina undertakes a monumental heist of the pension of hapless workers and gets a pitiable fine and a do-not-go-to-jail card. People loot Nigeria blind because they know they will get away with their crimes. Even if jailed, they know they can buy lighter prison terms and come back to enjoy their loot. No one has made a clearer case for assets recovery than Eric Holder, the United States Attorney General, at the Global Forum IV, in Doha, on November 2009. “We must work together to ensure that corrupt officials do not retain the illicit proceeds of their corruption. There is no gentle way to say it: When kleptocrats loot their nations’ treasuries, steal natural resources, and embezzle development aid, they condemn their nations’ children to starvation and disease. In the face of this manifest injustice, asset recovery is a global imperative.”

…the POCA bill is reportedly focused on recovering illegally acquired property through forfeiture, confiscation or civil recovery, and provides the powers to seize, freeze and restrain criminals from having access to such property.

The Nigerian Senate on June 3, 2015 passed the Proceeds of Crime ACT (POCA) Bill. Various Nigerian newspapers reported that the bill seeks to establish a central agency to manage the proceeds recovered from convicted criminals. Even though looking for information on nass.gov.ng is like looking for needle in a haystack, the POCA bill is reportedly focused on recovering illegally acquired property through forfeiture, confiscation or civil recovery, and provides the powers to seize, freeze and restrain criminals from having access to such property. One can be sure the bill will be an unimaginative lifting of the British POCA bill, with watered down consequences.

If that is true, no matter how watery the bill is, President Muhammadu Buhari should hasten to sign it into law. For us to get monies back from the plunder the country suffered during the locust years of Goodluck Jonathan, Nigeria needs a wide-ranging piece of legislation that will lead to the prosecution of any person who has laundered the proceeds of crime. The full strength of the legislation will be a powerful new tool in the battle against bribery and other related forms of corruption. It will help prosecutors target criminal assets, cut the profits from crime and increase the risk for those who indulge in criminal activities. Enforcement should focus on persons who hold or have held positions in government. It should also include people who, for personal or business reasons, are or were closely associated with such persons, including their family members. The persons we expect this legislation to immediately hold to account are:

(A) The President or head of government;
(B) Members of the executive council of government;
(C) Members of the legislature;
(D) Ministers, Ministers-of-State or those in equivalent rank;
(E) Ambassadors or diplomatic attachés;
(F) Military officers from the rank of a general and above;
(G) Managing Directors of state-owned companies, corporations or banks;
(H) Heads of government agencies;
(I) Judges;
(J) Leaders or the president of a political party represented in the legislature.

Under the leadership by example of President Buhari, a focused approach to asset recovery must ensure that everything possible is done to make the proceeds of crime harder to move, hide and use.

Apart from public office holders, the legislation should also have far-reaching implications for organised crime and broad extra-territorial jurisdiction over business organisations and individuals suspected of having engaged in money laundering, even when authorities may not have jurisdiction to prosecute the underlying conduct giving rise to the criminal proceeds. This is important in the case of economic crimes with international dimensions, in which the interest of the country is sabotaged. An example can be found in some deals undertaken by the late General Sani Abacha. In March 2014, the Justice department announced that it had frozen more than $458 million in corruption proceeds that former Nigerian dictator Sani Abacha and friends had spread around the world. Involved were three criminal schemes: the embezzlement of money from the Central Bank of Nigeria based on claims that the monies were necessary for national security, the purchase of non-performing government debts at inflated prices, and the extortion of money from a French company and its local affiliate, with respect to government contracts.

This means the conspirators lent money stolen from Nigeria back to Nigeria with zero risk and at enormous profit. In 2007, the bonds were liquidated, and the proceeds from the sale of the bonds, together with the proceeds of the Debt Buy-Back Fraud and Extortion, were deposited into Abacha’s accounts, using the corporate entities he established and through financial transactions in the United States. The corporate entities were registered in the British Virgin Islands, and bank accounts and investment firms holding the other assets are located in the United Kingdom, France, and the Bailiwick of Jersey.

This bill will have teeth when it becomes signed into law, if the scope of confiscation covers secondary proceeds and assets transferred to a third party by inheritance or gift, even in the absence of the third party’s knowledge of the crime committed, provided such transfer was made without consideration or at a discounted low price.

Abuja is littered with sprawling houses in estates built with the proceeds of corruption, stealing and illegal conversion of public property. Same goes for Lagos and Port Harcourt. Nigeria will get a lot of reprieve when provisions for restraining assets before conviction, confiscation orders after convictions and collection are enforced. Under the leadership by example of President Buhari, a focused approach to asset recovery must ensure that everything possible is done to make the proceeds of crime harder to move, hide and use.

Criminally minded Nigerians need hard deterrents. Confiscation, civil recovery and cash forfeitures alone will not cut it in Nigeria. Criminal taxation as a non-conviction based power must be employed. This is useful in cases where the collectable cannot be recovered. The Federal Inland Revenue Service (FIRS) should impose a heavy tax of 50 to 70 percent on an indicted person’s incomes, profits or gains, where there are reasonable grounds to suspect that they arose or were accrued from criminal conduct on the part of that person or another.

It is important that there be a statute of limitation in place. The statute of limitations for confiscation and asset recovery from public officials can be set at ten years, in the minimum.

When this bill becomes law, any, and all proceeds of crime should be confiscated, in principle. The incentive to loot is high because this enables many public officials to steal public funds to put their family at undue advantage over the rest of us and at the expense of our collective wellbeing. Proceeds of crime transferred to a third party must also be confiscated if the third party knew of the crime at the time of acquisition. This bill will have teeth when it becomes signed into law, if the scope of confiscation covers secondary proceeds and assets transferred to a third party by inheritance or gift, even in the absence of the third party’s knowledge of the crime committed, provided such transfer was made without consideration or at a discounted low price.

If there is no incentive to enrich one’s family at the expense of the country, the urge to loot will diminish. Prosecution of cases must also involve third parties who knowingly acquire proceeds and assets derived from a relevant crime that is liable for confiscation or forfeiture. It is important that there be a statute of limitation in place. The statute of limitations for confiscation and asset recovery from public officials can be set at ten years, in the minimum.

The Vice President’s experience and expertise will come handy in implementing the badly needed judicial reforms in the country.

Finally, we are not suffering for lack of laws, we are suffering from lack of prosecution and enforcement. In our history, we have had judges, who subvert the course of justice. The Vice President’s experience and expertise will come handy in implementing the badly needed judicial reforms in the country. For Nigeria to have a just and equitable society, we need a thorough reformation of our criminal justice system.

Bámidélé Adémólá-Olátéjú maintains a weekly column on Politics and Socioeconomic issues every Tuesday. She is a member of Premium Times‘ Editorial Board. Twitter @olufunmilayo

 

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  • That is right step in right direction!