Nigeria has legislation to prevent illicit acquisition of assets but one thing most lacking is a lack of provisions for management of assets successfully traced
Today, we shall continue our discourse into curing Nigeria’s present conundrum, continuing with the United Nations Convention against corruption, which we had earlier started in our last outing.
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United Nations Convention Against Corruption (UNCAC)
Worthy of note is Article 46 (1), which makes provisions for Mutual Legal Assistance. It reads thus:
“States parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention.”
The Convention goes further to elucidate on the “legal aid to include but not limited to taking evidence or statements from persons; Effecting service of judicial documents; Executing searches and seizures, and freezing; Providing information, evidentiary items and expert evaluations; Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records; Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes, the recovery of assets, in accordance with the provisions of chapter V of this Convention.
“By the provisions of Article 57, a State Party is required to dispose of confiscated property to its prior legitimate owners pursuant to the Convention and its domestic law. In doing so, the State Party must take cognizance of the rights of bona fide third parties. The requested State Party may deduct expenses incurred in investigations, prosecutions or judicial proceedings leading to the return of the confiscated assets. Also States Parties may enter into agreements or mutually acceptable arrangements for final disposal of such assets.”
African Union Convention on Preventing and Combating Corruption (AU Convention)
African Union Convention on Preventing and Combating Corruption aims at combating corruption and addressing its devastating impact on the political, economic, social and cultural stability of African states. The principle of the Convention is contained in its Article 3 and emphasizes the need of states to amongst other things abide by the principle of transparency and accountability in management of public affairs and condemnation and rejection of acts of corruption and impunity. In Article 1, “proceeds of corruption” is defined as:
“Assets of any kind, corporeal or incorporeal, movable or immovable, tangible or intangible and any document or legal instrument evidencing title to or interests in such assets acquired as a result of an act of corruption.”
Worthy of note are Articles 16, 17 and 18 of the Convention. Articles 16 (1)(a)-(c) provides thus:
“Each State Party shall adopt such legislative measures as may be necessary to enable: its competent authorities to sear, identify, trace, administer and freeze or seize the instrumentalities and proceeds
of corruption pending a final judgment; confiscation of proceeds or property, the value of which corresponds to that of such proceeds, derived from offences established in accordance with this convention; repatriation of proceeds of corruption.”
Article 17, among other things, provides that each State Party shall adopt such measure necessary to empower its courts or other competent authorities to order the confiscation or seizure of banking, financial or commercial documents with a view to implementing this convention. The Convention also provision for cooperation and mutual legal assistance between party states.
Economic Community of West African States protocol on the Fight Against Corruption (ECOWAS Protocol) and Inter Governmental Action In Money Laundering in West Africa (GIABA)
ECOWAS is a regional organisation formed in 1975, comprising 15 West African states. The ECOWAS Protocol was adopted to strengthen efforts in combating and eradicating corruption through cooperation among state parties. The obligations of state parties include the establishment of preventive measures against corruption, criminalization of acts of corruption, international co-operation and follow-up mechanisms. Most importantly, the ECOWAS Protocol provides a framework for the seizure and confiscation of assets in Articles 13 and 15. Article 13 provides for the seizure and forfeiture of corruptly-acquired assets. States Parties are required to adopt appropriate measures to facilitate the identification, tracing and seizure of items for eventual forfeiture. Courts must be empowered to order the surrender or seizure of bank or financial documents. Bank secrecy is not a valid reason to refuse a request for assistance by another State Party. Article 15 makes provision for mutual legal assistance and law enforcement cooperation. It emphasizes the need for bilateral or multilateral agreements among States Parties for the purpose of facilitating investigations, prosecutions or other judicial proceedings. Requested States Parties are required also to expedite action on requests submitted by competent authorities of requesting States Parties. Nigeria has been a member of ECOWAS since its inception.
West African countries recognized and acknowledged the threat and vulnerabilities to money laundering and decided as a united region to curb them. On December 10, 1999, the countries in Western Africa, by decision of the authority of heads of state and the government of ECOWAS, established the Inter-governmental Anti-Money Laundering Group in Africa (GIABA). The GIABA member states acknowledged that money laundering and financing terrorism are critical issues and have a negative impact on their economies and financial system. The members acknowledged that organized gangs threaten interregional and international peace and security in the region. The transfer and movement of the illicit funds through their economies could undermine the stability and development of the countries within the region. In addition, the member states realized that with the increased technology advancements, the globalization of communication , together with the world economic interdependence have changed the social and political landscape of the world and in the region. The member states further acknowledged that a risk assessment must be undertaken in an organized and systematic effort to identify and evaluate the methods of money laundering and terrorist financing, and to identify the weakness in antimony laundering legislation and other vulnerabilities that have an impact direct or indirect on the region.
The primary objectives of GIABA are to protect the national economies and the financial and banking systems of signatory states against the proceeds of crime and combat the financing, improve measures and intensify efforts to combat the proceeds of crime and to strengthen cooperation amongst its members. The formation of GIABA not only acknowledges the member states of ECOWAS willingness to fight money laundering and the financing of terrorism but GIABA is also a Financial Action Task Force Regional Body that fully adheres to the Financial Action Task Force (FATF) 40 plus 9 special recommendations that were developed by FATF during 2001. The FATF is not an international organization per say, rather, the rationale behind the formation or founding of the FATF was to develop and promote policies and legislations both at national and international levels, to combat money laundering and terrorist financing. FATF has a largely overlapping membership with the Organization of Economic Cooperation and Development (OECD). However, over the years, it has expanded and incorporated some strategically important developing states. As of today, the FATF consists of 34 member states and 2 regional organizations, representing most financial centres in the world. FATF also has associates that include the Asia/Pacific Group on Money Laundering (AP), Caribbean Financial Task Force (CFATF), Eurasian Group (EAG), Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG), Financial Action Task Force on Money Laundering in South America (GAFISUD), Inter-Governmental Action Group against Money Laundering in West Africa (GIABA), Middle East and North Africa Financial Action Task Force a (MENAFATF) and Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONERVAL).
With the creation of GIABA, the heads of state and government of the ECOWAS established a specific mandate for the inter-governmental organisation. The mandate, among other things, includes: to ensure the adoption of standards against money laundering and financing of terrorism in accordance with international standards and practices, including the FATF 40 plus 9 recommendations by all the member states, to assist in facilitating the adoption and implementation of the standards for each member states and ensuring to take into account the specific regional peculiarities and conditions and to function as a forum where all the members can discuss matters of regional interest and share their experiences.
Although GIABA has a well-defined mandate, the organization has developed a strategic niche in order to combat money laundering. GIABA realized that its problems are enormous and the challenges formidable therefore it seeks to achieve its results through programmes that maximizes comparatives advantages and practices this niche through training and manpower development, diffusion and promotion of acceptable international practices and standards and research and evaluation.
Nigeria’s approach to assets tracing and recovering
Nigeria has quite a number of legislation which seek to prevent illicit acquisition of assets but one thing most lacking is that though there exist legislation on tracing, seizure, confiscation and recovering of assets, there appears to be a lack of legislative provisions for the management of assets that have been successfully traced or recovered in the interim. Therefore, we shall quickly have a brief overview of some these legislations.
The Constitution of the Federal Republic of Nigeria, 1999 (as altered)
The Nigeria’s Constitution is the supreme law of the law and forms the foundation upon which all other legislations are predicated. Section 1 of the Constitution provides thus:
“This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria … If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The Constitution specifically obligates the state to “abolish all corrupt practices and abuse of power.”
The Constitution contains provisions directed at eradicating corruption through the power of investigation conferred on the legislature, audit of public funds by the Auditor-General of the Federation, and the Code of Conduct for public officers. Of all the mechanisms proffered by the Constitution to combat corruption, only the Code of Conduct contains provisions on asset recovery. Thus, in discussing the Constitution, preference will be given to the provisions of the Code of Conduct. Section 11 of the Code of Conduct obliges a public officer to submit a written declaration of all assets to the Code of Conduct Bureau upon assumption of office or at the end of every four years or term of office.
(To be continued)
Thought for the week
“There is no compromise when it comes to corruption. You have to fight it.” (A.K. Anthony)
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