Nigeria to establish Special Court for prosecution of proceeds of crime suspects, Terrorism Financing

The anti-corruption campaign in Nigeria gained a boost as President Muhammadu Buhari signed the bill which seeks to fast track the prosecution of suspects of proceeds of crime, terrorism financing, trafficking in persons, and related crimes, into law.

Under the arrangement, the legislation as encapsulated in Section 83 empowered the Chief Justice of Nigeria to designate special courts in the states where the proceedings under this act may be determined from time to time in order to reduce the backlog of cases in the Federal High Court; as well as Heads of Courts including Federal High Court, High Court of the Federal Capital Territory, and State High Court to designate special courts to hear and determine all cases under this Act or other relevant enactments.

The Act seems exclusively by Nigerian Tribune, was enacted and operational barely a week before the startling report on the N80 billion financial scandal allegedly linked to embattled Nigeria’s Accountant General for the Federation, Idris Ahmed who was suspended from office by Federal Government.

According to Nigerian Tribune and online analyses, the N80 billion ($192.65 million) looted fund, the amount could offset the N30,000 national minimum wage of no fewer than 2.667 million employees in Nigeria or drastically reduce the high poverty rate ravaging the country; can produce at least four world-class hospitals at the cost of about N20 billion ($48.1 million); build 5 primary schools of global standards ranging from N10.3 billion ($24.8 million) to N13.5 billion ($32.5 million); as well as build about 5,333 houses at N15 million per structure thereby reducing the conservative housing deficit of 15 million.

Public analysts who posited that the new legislation is a dope test for President Buhari’s administration to prove its mettle and tolerance for corruption among the comity of nations maintained that there should be no sacred cows in the fight against corruption and illicit financial flow out of the country.

The Act specifically makes comprehensive provisions for seizure, confiscation, forfeiture and management of assets/properties reasonably suspected to have been derived from unlawful activities and for related matters.

The affected assets include: funds or property of every kind whether tangible or intangible, movable or immovable, however, acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to or interest in such assets, including but not limited to bank credits, travellers’ cheques, bank cheques, money orders, shares, securities, bonds, drafts or letters of credit.

In the bid to ensure wider coverage of the unlawful activities of the suspects of proceeds of crime, the legislation stipulates provisions for ‘International forfeiture’.

Section 77(1) provides that: “Where the Court under this Act orders forfeiture of any property, which was established to be the proceeds of unlawful activity or instrumentality of unlawful activity within Nigeria and the other constituents of the instrumentality of the unlawful activity is situated in a foreign country, the relevant Organisation under the direction of the Attorney General of the Federation shall initiate proceedings, including by way of mutual legal assistance in that foreign country for the recovery of the forfeited property.

“Where it is established that a convicted person has any asset or property in a foreign country, acquired as a result of an unlawful activity, the relevant Organisation under the direction of the Attorney General shall apply for the asset or property, subject to any treaty or arrangement with that foreign country, to be forfeited to the Federal Government of Nigeria.”

Section 77(3) further stipulates that: “The forfeited property referred to in subsections (1) and (2) of this section shall be transferred to the relevant Organisation for management and its proprietary interest vested in the Federal Government of Nigeria, as provided under the provisions of this Act.

“Where a foreign country has forfeited or confiscated property under the laws of its country that relates to unlawful activity conducted in that country and Nigeria; and repatriates the whole or part of those assets or a sum of money that represents unlawful activity in Nigeria, the property shall be realised and the proceeds or the sum of money is paid into the Confiscated and Forfeited Properties Account established under Part IX of this Act.

“Any money paid into the Confiscated and Forfeited Properties Account under subsection (4) of this section shall be utilised to finance any of the purposes specified under this Act and as approved by the Federal Executive Council.”

The law which provides for the ‘Establishment of the confiscated and forfeited properties account which shall be maintained at the Central Bank of Nigeria(CBN), provides that: “monies realised from the proceeds of the sale, the management or other forms of disposal of forfeited assets under this Act and other relevant laws; proceeds of any property forfeited under section 23(2c) of the Code of Conduct Bureau and Tribunal Act, which relates to forfeiture to the State of any property acquired in abuse or corruption of office; monies paid to Nigeria by a foreign country–under any treaty or arrangement providing for mutual assistance in criminal matters, as mentioned in section 69(4) of this Act, or through repatriation of proceeds of unlawful activity; and monies paid to the relevant Organisation on behalf of the Federal Government in settlement of proceedings connected with this Act and other relevant laws.

“Proceeds of unlawful activity and money confiscated or forfeited under – the Customs and Excise Management Act, the Terrorism (Prevention) Act, the Money Laundering (Prohibition) Act, the Economic and Financial Crimes Commission (Establishment, etc.) Act, the Corrupt Practices and Other Related Offences Act, the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, the National Drug Law Enforcement Agency Act, the Code of Conduct Bureau and Tribunal Act, the Administration of Criminal Justice Act 2015, and any other law dealing with confiscation and forfeiture of property in force in Nigeria.

According to the Act, the instrumentalities of unlawful activity, including the proceeds of their disposal or confiscation under–the Customs and Excise Management Act; Terrorism (Prevention) Act; Money Laundering (Prohibition) Act; the Economic and Financial Crimes Commission (Establishment, etc.) Act, the Corrupt Practices and other related offences Act, the National Drug Law Enforcement Agency Act, the Code of Conduct Bureau and Tribunal Act, the Administration of Criminal Justice Act 2015, Trafficking in Persons (Prohibition) Enforcement, and Administration Act, 2003 as amended in 2015, as well as any other law dealing with confiscation and forfeiture of property in force in Nigeria; and cash forfeited under section 34 of this Act.

It further provides for an effective legal and institutional framework for the recovery and management of the proceeds of crime, benefits derived therein, the instrumentality of unlawful activities, and unclaimed properties reasonably suspected to be proceeds of crime.

Section 43 of the Act provides that: “A person, who knowingly disposes of or otherwise deals with a property subject of a restraint order, commits an offence and is liable on conviction to imprisonment for a term of two years or an option of fine of not less than N5 million or both.

The legislation which seeks to strengthen the collaboration among the relevant organizations in tracing and forfeiting properties reasonably suspected to be proceeds of unlawful activity through non-conviction based forfeiture proceedings, further recommends that: “a portion not exceeding two per cent of the recovered proceeds of crime be allocated to the relevant organisation responsible for the recovery of the proceeds, for operational and training expenses.”

The legislation also empowered designated officer(s) of Nigeria Customs Service, Service, National Drug Law Enforcement Agency, Economic and Financial Crimes Commission, Nigeria Police Force, Nigeria Immigration Service, NAFDAC, NFIU, ICPC, Nigerian Financial Intelligence Unit; Code of Conduct Bureau; Department of State Services; Armed Forces; Standard Organisation of Nigeria; Nigeria Maritime and Safety Agency (NIMASA); Nigeria Ports Authority; National Inland Waterways Authority; Nigerian Security and Civil Defence Corps; Federal Inland Revenue Service; and such other organisations to who continues to have reasonable grounds for his suspicion, cash seized under section 26 of this Act may be detained initially for a period of 7 days to enable the designated officer to apply to the Court for an order to detain the cash.

Section 3(b) of the Act also provides for the establishment of the Proceeds of Crime Management Directorate whose function shall: take over and assume responsibility for the proper and effective management of properties forfeited to the Federal Government of Nigeria and set standards to be applied in the handling of properties forfeited to the Federal Government of Nigeria.

It also seeks to ensure accountability in the management of all properties forfeited to the Federal Government of Nigeria; ensure the effective administration of properties forfeited to the Federal Government of Nigeria, and recommend training on the management of the proceeds of crime and related matters.

Section (3e) also empowers the Proceeds of Crime (Management) Directorate to work with the Federal Ministry of Justice to negotiate the return and management of all assets seized from foreign countries on behalf of the Federal or State Governments or any other victim or for the benefit of Nigerians.

The legislation also empowered the Directorate to recommend reparations to victims of crime, where proceeds have been recovered.

Section 7 which stipulates ‘Non-‐conviction based recovery of the proceeds of crime’, provides for provisions for the recovery and forfeiture of proceeds of crime, the instrumentality of unlawful activity, abandoned properties or unclaimed properties reasonably suspected to be proceeds of unlawful activity, without conviction.

On the ‘Disposal of property subject to preservation order’, section 13(1) provides that: “Where there are reasonable grounds to believe that a property, which is subject to a preservation order, may have its value diminished, or be disposed of, destroyed, or damaged, removed contrary to the Order or may deteriorate in terms of quality or utility, the relevant Organisation shall promptly apply to the Court ex-parte for an order to sell the property at the prevailing market value.

In the making, a forfeiture order, Section 19 of the Act provides that “the Court shall make a forfeiture order under this Act where it finds on a balance of probabilities that the property concerned is reasonably suspected to – be proceeds of unlawful activity; represent whether directly or indirectly the proceeds of unlawful activity; be involved in the facilitation of unlawful activity, or be intentionally used for unlawful activity.”

On the ‘Application of this Part to deceased estates’, section 25(1) provides that: “A notice authorized or required to be given to a person under this part shall, in the case of a deceased person, be sufficiently given to the administrator or executor of the deceased person’s estate, or to a person acting in that capacity.

“A reference in this section to the property of a person shall, in the case of a deceased person, be a reference to property that the deceased person held immediately before his death. An order may be applied for and made under this section– in respect of property, which forms part of a deceased person’s estate; and on the evidence adduced concerning the activities of a deceased person.

Part V, Section 26 of the Act which stipulated the procedure for ‘Recovery of Cash’ vis-à-vis ‘Seizure and detention of cash’, provides that: “A designated officer may seize and detain any cash in the process of being moved within or outside Nigeria, where he has reasonable grounds to suspect that it–directly or indirectly represents proceeds of unlawful activity or is intended to be an instrumentality of an offence; or is above the prescribed amount under the law and has not to be declared to the appropriate authorities or a false declaration was made in respect of the cash.”

These include notes and coins in any currency, cheques of any kind, including travellers’ cheques, bankers’ drafts, bearer bonds and bearer shares, pieces of jewellery and gold, or any kind of monetary instrument, where the instrument is so specified by the Central Bank of Nigeria.

As encapsulated in Section 34 of the Act, the objectives of the confiscation of proceeds of crime, are to – demonstrate that a convicted person should not be allowed to benefit from the proceeds of his criminal activity; and to provide an effective process by which the total benefit from a person’s criminal activity is calculated and an equivalent amount, where recoverable, is confiscated on behalf of the Federal Government of Nigeria.

It also seeks to enable the relevant Organisation to implement confiscation proceedings against a convicted person; ensure the preservation of all realizable properties; as defined under section 54 of this Act, and ensure that the realizable properties are preserved and available to satisfy a confiscation order.

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Nigeria to establish Special Court for prosecution of proceeds of crime suspects, Terrorism Financing