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Rafsanjani: Shoddy handling of Magu’s arrest casts slur on Nigeria, may hamper asset repatriation

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Rafsanjani

Head of Transparency International (Nigeria) and Executive Director, Civil Society Legislative Advocacy Centre (CISLAC), Auwal Musa Rafsanjani, in this interview with ENO-ABASI SUNDAY, said the manner, with which the probe of the suspended acting chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, has been handled is disastrous for international cooperation in fighting money laundering, Illicit Financial Flows (IFFs), asset recovery and transnational crime. He added that until the culture of the perceived right of those in power to use state institutions for power preservation and personal enrichment is changed, no law or policy will dramatically improve the fight against corruption.

Besides corruption scandals, political interference is one major factor that disarms past EFCC helmsmen and opens them up for attacks. What safeguards can be put in place to insulate them?
This depends on an enabling legal framework for independent leadership, implementation of strong ethical guidelines with standardised operational procedures, as well as total independent in spheres like strategic and operational planning, investigative and prosecutorial, corruption risk assessment, concept of corruption, corruption prevention frameworks, policies and regulatory frameworks, and citizens’ inclusion.

Also, reforms have to be made to the system of appointment of the chair, transparency in the conduct of the office has to be drastically improved, while independent members must be put in place in the oversight of EFCC through the EFCC Board. The appointment and recruitment must be made based on competency-driven criteria, and not personal or political affiliations. In the process of appointment, the candidate needs to be impartially and apolitically investigated so that past personal and professional deficiencies are discovered and his/her independence are secured.

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Many are not satisfied with the way that the EFCC chairman is appointed. What are your recommendations on how best to go about this?
The independence of the anti-corruption commission must be ensured in terms of the selection and appointment of their leadership and staff. Doing this will enhance the commission’s impact, efficiency and accountability in operational activities. Other spheres to be considered along this are legal, financial, human resources, detection and investigation, prevention and outreach, accountability and oversight.

Given this background, the EFCC chairperson and helmsmen of other anti-corruption agencies must be state officers with security of tenure through constitutional guarantees. The EFCC should insist on having a say in the selection/appointment of its chair and senior members of staff to preserve its independence and ensure staff quality.

The chair should be irreproachable in conduct and capacity, otherwise the public will not have the confidence to report incidents of corruption, and to assist the agency in its work.

The board of the EFCC has to be reinstated and CSOs and other competent independent members must be part of it to balance completely discredited state representatives.

With the importance attached to the appointment of the EFCC chair, there should be a joint independent commission from representatives of the President, the Federal Government, the legislature and consultation with other relevant non-state actors who have been working on accountability for at least five years. The chair might not be re-appointed to preserve his independence.

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The international community is becoming suspect of Nigeria’s anti-graft war. What specific steps can we take toensure credibility of the process?
We must recall that Nigeria is signatory to the United Nations Convention Against Corruption (UNCAC)— the only legally binding international anti-corruption multilateral treaty, which contains general provisions promoting and strengthening measures to prevent and combat corruption more efficiently and effectively. The convention also provides how member nations can promote, facilitate and support international cooperation and technical assistance in the prevention of, and fight against corruption, including in asset recovery as well as integrity, accountability and proper management of public affairs and public property. Deliberate delay in the full implementation of these provisions continues to widen existing loopholes, create major setbacks and expose Nigeria to more dramatic situations as we are currently experiencing in our anti-corruption efforts with weak institutions.

Also, Article 13 (1) (b) of UNCAC requires states’ parties to promote the active participation of citizens and civil society organisations in the fight against corruption, including through measures that ensure the public access to information. Procedures that enable the public to obtain information about the public administration are considered a major transparency measure that facilitates the exposure of corruption. Such procedures in Nigeria, are regulated by the Freedom of Information (FoI) Act.  Despite the existence of the FoI in Nigeria, access to information from public institutions still remains a great challenge that is frustrating civil society anti-corruption activities, as well as holding relevant anti-corruption institutions accountable. This, to a large extent, undermines the civil society’s efforts at supporting the implementation of UNCAC.

As related to the recent development, in the short-term, the Magu investigation must be conducted with maximum transparency. Any findings of the investigative panel must be presented to the public without any restrictions and political connotations. All evidence presented must be verifiable by the civil society and the international community.

Law enforcement officers and politically exposed persons should refrain from making statements on this matter until clear evidence is presented and conclusions reached in the investigation.

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If Magu is suspended indefinitely, his successor must be appointed based on independence, competence, positive record, with clear political backing across political parties.

In the long-term, legal and policy frameworks need to be strengthened. For example, Magu is accused of mismanaging and embezzling recovered assets. The Proceeds of Crime Act has not been signed by the President. It is impossible to manage transparently recovered assets without this legislation.

Also, anti-corruption institutions must prove that they are impartial and follow the law to the letter. Verifiable statistics on investigations, prosecutions and convictions must be proactively published. Final and interim asset freezes and confiscations must also be published. This will convince Nigerians and the international community about the impartiality and competence of the anti-corruption fight in Nigeria.

The country’s strategic partners in the anti-corruption war (some of which have mutual legal assistance treaties with Nigeria) are maintaining an eagle eye gaze on Magu’s probe. Are there pitfalls that the country should guard against?
The way this process has been handled is disastrous for our international cooperation in fighting money laundering, Illicit Financial Flows (IFFs), asset recovery and transnational crime. The way that Magu was arrested and paraded before national and international press and public statements by some public officials before any evidence was presented has caused Nigeria irreparable damage. There are around $4b worth of Nigeria’s assets frozen abroad and waiting to be repatriated. For this difficult and sensitive process, EFCC needs to be strong and perceived as competent and impartial. The process of arrest and detention and irresponsible public statements hamper all these efforts. All alleged breaches of the Magu’s professional conduct must be investigated, but in a sensitive and transparent way without theatrics, arrests at a gunpoint and ‘public trials,’ which rather suggest political vendetta.

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These foreign anti-corruption groups are already alleging that due process and proper disciplinary procedures have not been followed in Magu’s trial. How close are we getting our image dented if the situation degenerates?
The public image in anti-corruption is as important as the process itself. If state authorities are perceived as biased and not following due process, international and national confidence in Nigeria’s ability to fight corruption will disappear. Confidence and trusted relationships are internationally and also domestically absolutely essential in fighting corruption, recovering of assets and delivering justice.

The failure of past and present governments to erase the country from every top corruption index has remained a major source of concern. What do you think?
Just to be sure, Nigeria is not at the absolute bottom in international anti-corruption index. The last Corruption Perception Index (CPI) 2019, ranks Nigeria 148 out of 180 countries. Others show similar positioning of the country. However, it is worrying that despite the ‘war against corruption’ we have not improved at all in the last five years. Events like parading the chairman of EFCC certainly do not help in building an image of a country that is serious in fighting corruption. Transparent, competent and evidence-based impartial investigation will help to improve our ranking. Anything else will mean downwards, negative trend.

More important, we must take full implementation of UNCAC as a serious measure in the anti-corruption fight. This includes at all levels of anti-corruption effort. Also, the Federal Government must change its approach and begin to react constructively in working towards the outcomes and recommendations of CPI.

One of the allegations leveled against Magu is the conversion of recovered items for personal use. What are your views on the management of recovered assets in the country?
First of all, there are three problems. One is an overlap of mandates of institutions recovering and managing assets. Two, there is no legal framework for management of recovered assets in the absence of the Proceeds of Crime Act. Three, there is lack of transparency regarding who recovers and manages which assets.

In the current set up, different institutions like the EFCC, the Independent Corrupt Practice and Other Related Offences Commission (ICPC); the Code of Conduct Bureau; the Nigeria Customs Service; the National Drug Law Enforcement Agency (NDLEA), and others are recovering assets without any central database thereby increasing the lack of transparency in managing these funds. This system lacks transparency and can be politically misused and abused for personal gains.

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Expectedly, the consequence of this current set up can be seen with recent happenings around the suspended EFCC chairman. It is important to state that if there was an existing framework for the management of recovered assets, which is one of the allegations against him, the situation that we have found ourselves as a country would not have occurred.

A transparent asset recovery framework would improve the trust of foreign governments where over $4b of stolen funds are frozen and awaiting repatriation to Nigeria. Currently, there is a trust deficit, hence the delay in repatriating some of these assets. The Magu case just confirms fears and concerns of the international community, which suspects that assets would be re-looted if repatriated to Nigeria.

So for me, going forward, there is need for an asset recovery framework that will help in not just the management or utilisation, but the evaluation and monitoring of these assets to prevent corruption. There has to be a clear mandate for institutions in recovering and managing stolen assets.

There has to be a central, Internet-based, publicly accessible database of interim and final forfeitures of different types of movable and immovable assets, seized by different agencies.

Civil society organizations (CSOs) and the media then need to verify the authenticity of the data, as well as monitor the utilisation of looted assets. If we reach full transparency in recovered assets, nobody can accuse anybody of mismanagement or re-looting of looted assets.

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