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For those interested in financial crime proceedings in this country, and I guess many of you are, it is such a relief when one sees news headlines highlighting how much properties the Economic and Financial Crimes Commission has compelled convicted criminals, as well as suspects, to forfeit to the Federal Government. We hear of “properties in Dubai, houses in Abuja, plots of land in Calabar, luxury apartments in Lagos, recovery of N980bn in five years”, etc all supposedly confiscated and forfeited to the Federal Government. You doff your hat to the gallant EFCC top management batting for Nigeria. Then comes the stinker: “Court refuses to forfeit Saraki’s properties to FG”, and “Court discharges forfeiture order on assets linked to Stella Oduah” in last week’s news headlines. These two are just the very latest examples of the constant EFCC setbacks in these matters. The same happened in the case of Cecilia Ibru, Mrs Patience Jonathan, former Governors Ayodele Fayose (Ekiti), and Rochas Okorocha (Imo), to mention but a few. There is not a single high profile property forfeiture by the EFCC that has not been subsequently reversed or in the process of being reversed, or watered down to the miniscule by the courts.
The definition of madness, according to Albert Einstein, is doing the same thing over and over, and expecting a different result. It had been argued here before, and it is worth restating: The EFCC’s current approach to financial crime prosecution and property forfeiture is no longer fit for purpose. And, for the umpteenth time, here is why.
Let me be as simple as it can be made to the wider readership. The EFCC methodology is honed on an aggressive criminal prosecution of financial crime as the best way of stemming the tide of official corruption, money laundering and financial crime in general. In other words, arrest, put on parade, prosecute, secure conviction and forfeit assets in that order. Followed to its logical conclusion, the process is cumbersome, and often becomes mired in a cobweb of legalism (See; “EFCC and PEPs: Caught in a cobweb of legalism”, The PUNCH, March 21, 2017). It takes an average of five years to bring a criminal proceeding to a conclusion. In some notorious cases, this could easily take 10 years or more, during which time government would have changed, and the priorities of a new administration may have changed with it as well.
Indeed, Nigeria is the best place to stand trial for high profile financial crimes, because the lawyers, especially the Senior Advocates of Nigeria, they rely on to get them off, not only have knowledge of the law, but also have useful contacts in the judiciary as well. They enter into ‘battle’ with the prosecuting authorities, (as they must), and fight them to a standstill, (as they do).
To make matters worse, the prosecution in Nigeria is in the bad habit of proffering several dozen counts against an accused. James Ibori, for instance, had over 100 counts, and the EFCC lost them all. He was later arrested and prosecuted in London on a simpler 12 counts, and was convicted and sent to prison in 2012. In fact, faced with the incontrovertible and meticulously assembled array of evidence against him in open court, he chose to plead guilty as the presiding judge, Anthony Pitts, had warned that he could expect to be sent down for 26 years if he contested the charges and lost. He got a reduced 13 years for not wasting the court’s time contesting the charges. Even where a conviction is secured against the accused in Nigeria, the Supreme Court almost invariably throws the spanner in the works for the prosecuting authorities. And, where assets were up for forfeiture and announced with glee in the press, it is only a matter of time before that runs into a judicial cul-de-sac.
To crown it all, high profile sentencing in Nigeria is often one of the lightest there can be. Remember the Chief Executive of a bank, found guilty of brazen theft of shareholders’ funds running into billions of naira, and only got a few months sentence, much of it served recuperating in a hospital? With all the money and pain it took to secure a conviction for former Governor Orji Uzor Kalu, he only got 11 years sentence, which has now been set aside. They love you, EFCC, they really do. It gives me no pleasure saying this, but listen to what the Deputy Speaker of the House of Representatives, Ahmed Wase, said only last week on Kalu’s prison sentence: “My leader, the late Chief Solomon Lar, told me not to fear as a politician to go to prison. He told me that going to prison is a badge of honour”. This, coming from a Principal Officer of the Nigerian Legislature, is nothing short of breath-taking. Here is a senior lawmaker in this country openly lampooning, thumbing his nose at the criminal process as it concerns the ruling elite. It lays bare the futility of criminal prosecution this column has been highlighting again and again. Also, that, the EFCC’s chosen methodology, is well and truly redundant. (See; “Why Kalu’s prison sentence falls short” The PUNCH, December 10, 2019).
Now, you have heard it from the horse’s mouth; criminal conviction and prison sentence have no deterrent value on public officials in this country. Time spent in prison is a “badge of honour” for them. It is not only in Nigeria though, it is an African phenomenon (See; “Why we celebrate (not jail) corrupt leaders in Africa”, The PUNCH, May 1, 2018, and May 8, 2018). The reason why serving term in prison has little effect on politicians in Africa is historical and has been well covered in two parts on the dates cited above. The African elite fear the loss of their property far more than they fear the loss of their liberty. Criminal conviction for theft of public property has no resonance in the wider community either. “Oh yes, is he the only one”? “But, they are all doing it”. “His political enemies are fomenting trouble for him”. “So and so from such and such ethnicity committed the same offence and nothing happened, why our own man”? You get these side yawns often from bewildered constituents in the towns and villages whose values have been debased through many decades of public pilfering by politicians.
So, to reiterate the alternative remedy this column has been advancing for years. Instead of putting Kalu through the criminal jurisdiction again, take him to court as a TRUSTEE of public property and let him ACCOUNT for everything, the billions of properties in his name, including the shirt on his back. To be declared a trustee of public property is an extremely onerous position for anyone to be in. The courts will have to be persuaded with a mightily strong argument. But, once a trust relationship has been found to exist, the state does not have to show any wrongdoing on the trustee’s part, only that he has acted in breach of his “fiduciary” (sacred) obligations. This particular route is novel. It has never been tried anywhere in Africa before. It does not require proof of any kind, it does not allow for any appeal through the criminal courts. As a trustee of public property, the burden of proof is reversed; the onus is on the person in a position of trust to account. Any subsequent seizure and forfeiture of assets cannot be appealed. Plus, it does not mean the accused is shielded from criminal prosecution, but it means the properties they have spent a lifetime acquiring and building up are traced and disgorged, including all incidental values attached.
Make Kalu the test case, please, the EFCC. We are rooting for you!
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