Asset Recovery In Nigeria: Experiences From The Past By Nuhu Ribadu
I am happy to be part of this epoch-making workshop that is most timely and appropriate given the atmosphere in the country as far as the fight against corruption is concerned. It is very thoughtful for the organisers of this event to bring experts together and brainstorm on important aspects of the war against corruption with a view to streamlining whatever is in existence and strengthening what needs to be strengthened. For me, this period is an important episode for this work, being a time that we have the most vital tool needed in this war, namely political will. I see in the present leadership, specifically the president, the will to allow the war to be fought without interference and the eagerness to support it in whatever way possible. These two points are an important prerequisite for winning the anti-corruption war.
We are also lucky to have a set of people that are very passionate and committed to being in charge of the process. Added to this, we have a plethora of practitioners, intellectuals, activists and the media that are keen and supportive of the campaign. We have to seize this opportunity by setting a very serious, strategic and focused direction to secure the future of this work and address the major impediments once and for all. The situation today is almost similar to the condition that existed when I chaired the EFCC, which enabled us to set modestly a very good foundation that is still serving the country very well.
The decision by this committee to create a platform for discussions on asset forfeiture proceedings and management is very commendable. Asset forfeiture is an integral component of the anti-corruption work as it serves many purposes within the anticorruption framework. First, it serves as restitution in the sense that what was ill-gotten is returned to the right owner(s). It also functions as a deterrence to others as those who illegally enrich themselves get stripped of that wealth overnight. Similarly, through proceeds of final asset forfeiture, the government can make extra money that can be channelled to projects that would enable growth and development of the state.
As a specialised element of the anticorruption process, asset recovery requires professional and dedicated people comprising investigators, prosecutors, and managers to handle it jointly for effectiveness and to drive the maximum benefits. A point, therefore, has to be made on the importance of diligent investigation to successful and fruitful asset recovery and management. Whatever success that is made of forfeiture or recoveries depend on the thoroughness of investigation and diligence of prosecution and ability of investigators to trace whatever is traceable and recoverable. The success of asset forfeiture begins with the investigation.
Surprisingly, however, in spite of the lack of adequate legal guidance and other limitations, Nigeria is perhaps the most successful country regarding asset recoveries from foreign lands. Over time, a lot of money has been successfully returned to us in assets laundered in several countries.
Efforts at Recoveries in pre-EFCC days:
The most significant case of assets recovery before the establishment of the EFCC is perhaps the Abacha loot recovery which began not long after his death in June 1998.
As a legal officer and prosecutor then with the Nigeria Police, I was attached to the team that worked on the Abacha case. With the paucity of assets recovery laws, we relied on informal methods including Administrative Confiscation, a mechanism of confiscating assets through non-judicial means. Within the first few months, we recovered billions domestically from such forfeitures.
Subsequently, the federal government hired foreign lawyers, notably Enrico Monfrini, to assist in identification and return of stolen monies in different parts of the world. This foreign aspect of it was largely handled by the Office of the National Security Adviser.
However, I was partly involved in the negotiations with the Swiss authorities which presented us with some unique experience at the time. Under their system, forfeitures, irrespective of the origin of the illegal funds, would have to first is go to their authorities, and Nigeria had to, therefore, negotiate with the government on getting our money back. Their condition was that they would want to see the money used for some specified social intervention projects. However, our dilemma then was the constitutional requirement that all recovered monies must be paid to the federation account and of course all spending from the federation account must be budget first. We, therefore, involved the United Nations and the World Bank as intercessors in satisfying that requirement. Eventually, significant amounts were returned to the country.
EFCC: Early Days and Foundation for Recoveries:
The most important step that helped us tremendously with our work on recoveries and other areas of the work generally was our initiative to draw expertise from various strategic stakeholders.
We ensured that from the very beginning EFCC started off as a multi-stakeholder organisation that brought in skilled personnel from agencies such as the Police, CBN, NDIC, Customs, NDLEA, CCB, among others. We leveraged on this hybrid composition to handle diverse aspects of the work and made a modest success of technical areas that would have otherwise posed a challenge.
In line with the Anti-Money Laundering Law, we set up the Nigeria Financial Intelligence Unit (NFIU) which gave us a near total control of the financial sector.
One other very important step we took was to link up and sustain a good working relationship with sister organisations in different countries like the Metropolitan Police, FBI in the US and Scorpions in South Africa. This relationship later proved invaluable and is being harnessed till date, enabling us to often times bypass long queues of bureaucracy to help each other in joint investigations. This initial groundwork also assisted us in evolving creative ideas that resulted in our success.
Notably, the EFCC Act is the first to treat asset forfeiture in some details. Even though it was also fairly inadequate, it was still good enough for a start. What we, therefore, explored largely was an informal approach to get the work done.
These cooperations and linkages helped us greatly in handling several cases that have foreign aspects, especially in successfully tracing and recovering assets such as in the cases of former governors Joshua Dariye, DSP Alamieyeseigha, and James Ibori, as well as the fraudster Emmanuel Nwude and the Haliburton investigations.
Management of Assets and Proceeds:
The primary principle of assets recovery is to ensure that proceeds and character of the subject matter of the crime are preserved and protected pending the final judgement on the matter. This is important because a case can be decided either way and where a property is finally forfeited or returned to a suspect, it should be in a good condition as to be of value to the beneficiary of the judgment.
Secondly, it should also be made sure that the right of the individual to enjoy the ownership and use of his property is guaranteed. This calls for flexibility so as not to be harmful to the society in the process of restraining an asset by way of sending innocent workers away from work when businesses are forced to close.
In doing all this, transparency and accountability are very key to whatever we do. To forestall any suspicion or false alarm we placed emphasis on transparent handling of recoveries through effective management which will safeguard the recovered assets from depreciation, movement or destruction, especially before final forfeiture.
In the early days of our work at the EFCC, exhibit keepers played the role of managers of recovered assets, in cohorts with the investigators. In some cases, professional managers were appointed to handle specific recoveries such as hotels and rental apartments. We also delegated management of some special assets like ships, tanks, and airplanes to government agencies such as the Navy, Civil Aviation Authority, etc.
Eventually, the Assets Forfeiture and Recovery Section to be the custodian of such assets and be our liaison with asset managers.
For businesses that were running, as I pointed out earlier, we prioritized saving the businesses by considering the larger picture than just shutting down the premises. It was the same restraint we exercised in handling many cases including Globacom, Honda Place, and The Sun newspapers.
Considering the care we took in handling whatever was in our custody, I find it baffling and disheartening when I hear people make insinuations about how we handled recovered assets. It is the most unfair remark but certainly not totally unsurprising as the fight against corruption is essentially a thankless job, especially in our climes.
Contrary to such insinuations about self-enrichment, it was some people not us or even the government that made money from some of those cases. A case in point is the Halliburton investigation where after we had done the bulk of the work it was turned into a milking cow for some senior lawyers who made millions of dollars out of it.
Owing to the limitations of the existing laws as regards asset forfeiture, the current attempt at enacting a law to cover the spectrum of issues around forfeiture is a welcomed development.
On a larger scale, I would suggest that a high-level serious consultations be held between all the three arms of government to discuss steps and measures of evolving a very comprehensive national strategy on the fight against corruption that would enumerate the roles expected of all; the executive, the legislature and the judiciary.
We should have a strategy that is a product of a consensus. Out of this strategy, we can agree, if need be, to have new laws or institutions with clear mandates and responsibilities.
The federating units should also be invited to sign on to this strategy so that at the end whatever emerges is what everyone consents to. This buy-in will guarantee effective implementation.
There is also the need to come together and make the best use of what we have, presently. We have adequate mechanisms and tools to fight corruption through the instruments of such laws and agencies as ICPC, EFCC, NEITI, BPP, AMCON, NDIC, CCB, among others.
From my personal experience, and from the example of EFCC as an organisation, this work is better managed when we have all components under one roof that caters for everything, instead of having several agencies with overlapping and duplicating functions. Divided agencies tend to create problems, when investigators, prosecutors, and custodians of assets are from different places. There is bound to be missing links and confusion.
Lastly, I want to appeal to Nigerians to give the current government’s fight against corruption a chance and shun the undue politicisation of issues. There is no other way to prosecute anticorruption than what we are witnessing presently. The effort has yielded appreciable result going by the unprecedented recoveries and the high profile cases being handled. The government and those in charge of the process deserve commendation and our collective support.
This war is about the survival of our country, and the right environment has to be created for the malfeasance to be cleaned and the right foundations and tools set for greater Nigeria. Unfortunately, emotions are often put forward before national interest thereby rubbishing what is otherwise noble and patriotic undertaking. Some of us that have done this work and those presently doing it have been unduly vilified for nothing other than daring to confront the corruption monster. We need to change our attitude if we are to make enduring headway in this all-important battle.
Nuhu Ribadu was the pioneer Chairman of Economic and Financial Crimes Commission (EFCC) presented this paper at the National Stakeholders Workshop on Recovery and Management of Recovered Assets organized by the Presidential Advisory Committee on Corruption. Transcorp Hilton Hotel, Abuja, July 20, 2016.