Fighting corruption: Time for Nigeria to take the gloves off
Nigeria is making significant inroads into the fight against corruption. Charges are being brought against people in Nigeria for corruption and fraud allowing significant amounts of cash to be recovered. And the country has achieved some success in recovering the proceeds of corruption laundered offshore, notably the return of US$700 million by Switzerland. But not every country is cooperating. As an Australian Federal Police officer, I have experienced the frustration of attempting to recover the proceeds of crime earned in Australia and laundered overseas. Recovering the proceeds of crime in other countries involves a minefield of legal, logistical and financial issues. However, the chances of success can be increased by undertaking a thorough criminal investigation in country, having local money laundering laws that are robust and which have extra territorial reach, and by the appropriate use of informal and formal asset recovery arrangements.
If Nigeria is seeking to rely on international legal arrangements alone to recover the proceeds of corruption offshore, for example the UN Convention Against Corruption, then in many cases it could be sadly disappointed. Or it should be prepared to wait a long time for its money. Many countries and institutions are reluctant to cooperate as they do not want to give up any money easily, even if it is illegally obtained. They make a living out of the shadow or dark economy. Nigeria therefore needs to take the gloves off and get tough on the international scene with asset recovery. Otherwise, countries and organisations will continue to brush off Nigeria using any legal loophole possible.
To enhance its asset recovery options, Nigeria should develop its own asset recovery framework that not only works with current international asset recovery arrangements but extends beyond them when those arrangements do not work. Enhancements the Nigerian Government should consider include:
Upgrading domestic criminal money laundering laws by increasing the penalties up to 25 years imprisonment.
Expand the physical act of money laundering to include receiving, possessing, concealing, disposing off, engaging in a transaction or exporting or importing the proceeds of crime from Nigeria. Having a very wide framework that captures every conceivable act of money laundering, expands the chances of prosecuting those involved and recovering illegal assets.
Include recklessness and negligence as mental elements in money laundering offences, as is the case in Australia or reverse onus provisions as with Hong Kong. Changing the mental element of money laundering as recommended will make it easier for Nigeria to prosecute professionals in that country and abroad who handle the proceeds of crime including corruption. For too long professionals who have advised and assisted criminals to launder money have evaded prosecution, as they have argued that they did not know the money was the proceeds of a crime. Changing the mental element to recklessness or negligence, means that professionals including bankers should have known the origin of the funds, and should have taken steps to find out the source.
Introduce non-conviction based civil forfeiture laws in Nigeria for all serious offences including illicit enrichment provisions (also known as unexplained wealth).
Introduce a criminal offence for all politicians and public servants who have unexplained wealth that they cannot explain, as is the case in Hong Kong.
Extend Nigeria’s money laundering laws to include all Nigerian citizens (with no exemptions for politicians); and all Nigerian residents wherever they live; all Nigerian registered companies wherever they operate and to all persons and companies who “cause a money laundering harm to Nigeria”. The latter provision would apply to any person or company that promotes a scheme or who provides a service that is used to launder money from or to Nigeria. It would apply to offshore promotors, bankers, property developers and managers etc who earn huge amounts of money by handling the proceeds of crime, including funds derived from corruption or who provide advice on how to conceal or move illegal funds. Any person or company who receives, possesses, conceals or transfers etc, money derived from corruption or other serious offence would commit an offence against Nigerian law, regardless of where they live or their nationality.
Develop multi-agency task forces in Nigeria combining the resources and powers of all agencies including the NFIU, EFCC, NDLEA, Nigeria Customs and Federal and State taxation departments. The function of the task forces would be to pursue money laundering relating to all crime, and to recover the proceeds of crime. With illegally earned cash and assets it is very difficult to proof that they are tainted. A multi-jurisdictional and agency approach, increases the changes of establishing that funds were derived from crime.
Ban any international bank that refuses to cooperate with the Nigerian Government from operating in Nigeria.
Prevent any Nigerian Bank from having a corresponding bank arrangement with any international bank, that refuses to cooperate when it holds the proceeds of crime laundered from Nigeria.
If implemented the above changes will strengthen Nigeria’s arsenal in combating corruption and major crimes domestically, bringing to task those professionals who profit from laundering the proceeds of corruption and serious crimes and recovering the proceeds of crime offshore. In a practical sense, the above measures would operate as follows:
A request for mutual legal assistance in criminal matters to a country to gather evidence of a criminal offence and to recover the proceeds of crime should be drafted in the widest possible terms. Many countries make the mistake of only seeking evidence in relation to one crime type or one offence. From experience, a request should seek evidence relating to as many major offences as possible including tax evasion and money laundering. Money laundering should always be included where funds are involved. As an act of money laundering would have been committed to get illegal funds out of Nigeria. And as all illegally earned income is taxable, tax evasion should be included. This is reinforced by changes to international money laundering standards making tax evasion a criminal offence of money laundering. Forming multi-agency teams enables wide reaching multiple offence mutual assistance requests to be submitted to a foreign country.
Any criminal investigation should in addition to targeting the main offenders, also focus on those persons offshore who have received the proceeds of crime or continue to possess or control the proceeds of crime or who have assisted in the movement of proceeds of crime. Warrants for their arrest should be grounded in Nigeria and alerts raised with Interpol. Any request for assistance should include the extradition of those people to Nigeria as well. If the country in which those advisors reside, does not hand them up for extradition, then Nigeria needs to be patient and monitor them until they can be arrested when they visit a country that is prepared to assist.
Once Governments, organisations particularly international banks, and professional firms realise that the Nigerian Government is targeting the facilitators of corruption and money laundering, there will be a significant change in attitude towards cooperating with Nigeria.
Douglas is a Director, Malkara Consulting (Australia and Singapore)
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