The Economic and Financial Crimes Commission under the watch of its Acting Chairman, Mr. Ibrahim Magu, has been posting unprecedented record of achievements in terms of convictions of those who are standing trial over corruption related matters. This year alone, as at December 21, 2018, the following convictions were recorded by various zones of the EFCC judging by records from different courts nationwide: Total convictions recorded by EFCC as at December, 2018: Abuja – 38, Lagos – 85, Kano – 36, Port Harcourt – 33, Enugu – 15, Gombe – 28, Kaduna – 6 , Ibadan – 10, Benin – 27, Maiduguri – 11, Uyo – 8; total – 29.
It is instructive to note that the record of such convictions include high profile convictions, significantly the celebrated convictions of the former Governors of Taraba and Plateau States, Rev. Jolly Nyame and Joshua Dariye respectively. The two ex-governors are now serving their prison terms in Kuje Prisons, Abuja. The conviction of the former Executive Chairman of Ogori Magongo, Mr. Gabriel Daudu affirmed by the Supreme Court early in the year has raised significant jurisprudential contribution which is the thrust of this paper.
Remarkably, in the celebrated case of Gabriel Daudu vs FRN (2018) 10 NWLR (Pt.1626) 169, 183 E-F (2018) LPELR – 43637 (SC). The Supreme Court made the mother of all pronouncements on burden of proof in corruption cases. The apex court held: “The burden lies on an accused person to explain properties he acquired which are disproportionate to his KNOWN legitimate earnings.” The implication of this judgment is that once it is shown that you have much more than you should have had, then it is yours to explain the source of such wealth. This is a major contribution by the judiciary particularly the Apex Court to the war against corruption.
This is consistent with international standards and best practices including recent legislations in civilized jurisdictions around the world. The Supreme Court’s pronouncement is significant because Prosecution of proceeds of crime in Nigeria is a heavy burden mainly because of the requirement that criminal cases must be established beyond reasonable doubt. Burdens and standards of proof in criminal proceedings in possession of unexplained property prosecutions particularly in the context of assets in excess of legitimate earnings is a heavier burden because of uncertainty of who bears what burden, for which facts the burden is applicable and the required standard of proof to deliver successful prosecutions.
Against the background of the recent Supreme Court case in Gabriel Daudu v. FRN, there is the need to ask pertinent question- whether in the light of statutory provisions including Section 19(2) of the Money Laundering (Prohibition) Act 2004 legislating against possession of pecuniary resources which the defendant cannot satisfactorily account for and which is disproportionate to his known sources of income, the development can be said to have raised the bar higher in the fight against corruption by criminalizing assets in excess of legitimate earnings in Nigeria.
The recent Supreme Court decision in Gabriel Daudu v. FRN has progressively impacted on burdens and standards of proof in money laundering cases particularly with respect to assets in excess of legitimate earnings.
Honourable Justice Akaahs in GABRIEL DAUDU v. FEDERAL REPULIC OF NIGERIA highlighted the challenges of burdens and standard of proof in
money laundering cases when His Lordship observed as follows:Proving Money Laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution (as amended) provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant. The Section provides thus:- “36(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts”.
By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.” Per AKA’AHS, J.S.C. (Pp. 13-14, Paras. B-E)
The implication of the judgment is that as a result, criminalisation of illicit enrichment including assets in excess of legitimate earnings will ease the burden of proof on the prosecution in establishing such offences and facilitate criminal forfeiture of possession of unexplained property as a critical anti-corruption fighting tool.
Significantly, the Supreme Court pronouncement is consistent with recent legislations emanating from the United Kingdom. The United Kingdom (UK) has introduced a new law in tackling corruption. The law – under the law called Unexplained Wealth Orders Regulations, it is now mandatory for the owner of property worth over £50,000 to explain beyond reasonable doubt the source of the property or risk its forfeiture.
The development has now shifted the burden of proof to the defendant, rather than the old order of the defendant being presumed innocent until proved guilty. It is remarkable to state that the Supreme Court upheld the judgement of the high court and Court of Appeal on the conviction of Gabriel Daudu and insisted that those who acquire property and assets beyond their income must explain the source of such wealth or acquisition.
Clearly, the Gabriel Daudu and FRN’s case may have given judicial approval to statutory provisions contained under Section 19(2) of the Money Laundering (Prohibition) Act 2004, Section 15(a)(b) of Advance Fee Fraud and other Fraud Related offences Act 2006 and section 18(5)
of the Economic and Financial Crimes Commission (Establishment Act) 2004 respectively; It represents a bold restatement of the law on the element of burden of proof in money laundering cases, particularly the fact that the evidential burden shifts to the defendant to explain the source of funds in excess of legitimate earnings standing in his account. This no doubt may have lessened the burden on the shoulders of prosecutors charged with the responsibility of prosecuting these cases.
A direct implication of the Supreme Court pronouncement is that the burden of establishing that the funds/assets are in excess of the legitimate earnings of the defendant still remains with the prosecution and this must be proved beyond reasonable doubt.
Subsequently, having established the excess funds/assets beyond legitimate earnings of the defendant, the burden shifts to the defendant to explain the source of such earnings to the satisfaction of the court.
In the words of Professor Adedeji Adekunle, the significance of forfeiture in modern times, as a substantive penal measure is more noticeable in relation to its deterrent and destabilising effect on criminals or crime organisations. If in addition to conventional penal measures like imprisonment, punishment is able to strike at the motivating factor of the crime – the financial benefit – it is likely to discourage many persons from committing such crimes. Invariably crimes that are financially motivated involve a deliberate calculation of risks and benefits by the offender. Where the risk of detection includes also the risk of losing the benefit, it is argued that this would sufficiently deter criminals. Some jurisdictions have increased the stakes significantly by extending forfeiture to circumstances where criminal trial does not take place and also to any asset which is not necessarily derived from the crime of conviction. The justification for this obviously is that there is greater deterrence value in expanding the net of assets at risk of forfeiture in the event of detection.
Secondly, beyond deterrence tool, forfeiture is of strategic importance in criminal law enforcement as a substantive weapon for tackling and weakening crime particularly where it occurs in an organised form. The importance of money to organized criminal activities is graphically described thus: Just as money is the life blood of legitimate business and industry, so too, is it the life blood of all domestic and international organized crime groups regardless of the criminal activity giving rise to the proceeds. It flow through the international banking system is what sustains the illicit operations by providing the criminal with the constant source of new capital needed to pay operating expenses and to buy goods and services.
A deliberate systematic policy of seizing money and identified assets of criminals deprives organized criminal activity of crucial funds essential to its operations.
It can be argued that in Nigeria and on the strength of the recent Supreme Court judgment in Gabriel Daudu v. FRN assets acquired in excess of legitimate earnings will constitute a crime giving rise to the liability of criminal forfeiture depending on several variables.
First, the nature of the forfeiture proceedings is essential to such determination. Forfeiture proceedings are in variety. I. Non-conviction based asset proceedings are civil in nature being action in rem. The penalty therefore in such proceedings is on theproperty and not the defendant. This proceeding cannot be said to occasion criminal consequences on a defendant except on his/her property. However in a sense forfeiture of the property of the defendant without trial and where the defendant is not available under non-conviction based forfeiture can be argued to amount to criminalising of the property, the proceeds of crime. Where the forfeiture relates to conviction based forfeiture proceedings, the result is criminalization of not only the defendant but the proceeds of the crime. Proceeds of crime in this sense including but not limited to perishable assets, and assets of diminishing value, petroleum products (PMS, Gasoline, hydrocarbon), vehicles, mechanically and electronically propelled vessels including conveyance by air, sea, road, rail and space, crops, livestock and foodstuffs, cash in hand, cash in a bank account, going concerns, real estates amongst others. Any of these assets in excess of legitimate earnings could be subject of either non-conviction based forfeiture or conviction based forfeiture.
Adjunct to the above, there are sufficient justifications for criminalising illicit enrichment including assets in excess of legitimate earnings. One justification is that illicit enrichment has been defined in various international and regional anti-corruption instruments including UNCAC which defines it to mean ‘a significant increase of the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income’. It also explicitly included the requirement of intention (mens rea) for the crime to be committed. Apart from UNCAC, no regional anti-corruption conventions as well as domestic laws require intention as an element of illicit enrichment.
In addition, the scope of UNCAC seems restricted to the wealth of the public official while the AU Convention transcends such limitation by including the term ‘any other person’. This term was incorporated because assets can be transferred easily to third parties who are affiliated with public officials in one way or another. It is also instructive as further justification that consistent with Section 19(2) of the Money Laundering Act disproportionate wealth and failure to justify the legitimacy of the source of the alleged wealth are the elements of the offence of illicit enrichment under the definitions.
The other justification may have arisen from the fact that illicit enrichment is shrouded in secrecy, which creates difficulties for its detection and investigation. However, property in the hands of public officials and their families that are manifestly in excess of their legitimate income would be relatively easy to detect, investigate and prosecute. The extreme difficulties in obtaining evidence to prove bribery and other related acts of corruption demand a consideration of the criminalization of a significant increase in the property of public officials. Therefore, the inclusion of the offence of illicit enrichment in the list of crimes of corruption is perceived to be an effective way of combating corruption.
Based on the foregoing reasons, there is no doubt that it is absolutely necessary to criminalize illicit enrichment including but not limited to unexplained property and assets in excess of legitimate earnings. Criminalisation of such offences has advantages because it is associated with the standard of proof for conviction. The prosecutor is required to prove beyond reasonable doubt the disproportionate assets in the hands of the defendant in relation to his legitimate income. One advantage of this requirement is that the prosecutor is not required to prove bribery or any form of corruption to succeed in the case, the prosecutor only obligation being to show that the since the wealth is not proportionate to the legitimate income of a public official it is presumed to have originated from corruption unless the contrary is proved. This may have eased the burden of proof on the prosecution.
The advantages of criminalising illicit enrichment are associated with the standard of proof required for conviction. In prosecuting illicit enrichment as a crime of corruption, the prosecutor should prove beyond a reasonable doubt the disproportionate assets in the hands of the accused in relation to his legitimate income. In this respect, the prosecutor is not required to prove the fact that the accused has received a bribe or committed any other form of corruption. Wealth that is not proportionate to the legitimate income of a public official is presumed to have originated from corruption unless the contrary is proved. In such circumstance, the burden of proof is eased and the prosecutor is not required to prove corruption as asource of the wealth in question.
The reluctance to criminalise illicit enrichment may have arisen out of the debate on human rights issues raised by some writers. It is my view however that the need combat corruption and stolen wealth by corrupt public officials makes such criminalization compelling subject to safeguards to preserve fundamental rights of the citizens.
The point that is being made is that owing to the networks of intricacies involved in money laundering, the need to lower the standard of proof and compel the defendant to also explain sources of funds of doubtful and questionable origins is compelling. This is not likely to be achieved by a strict adherence to the elements of presumption of innocence without shifting of burdens in cases of unexplained property. Any objection?
The proposal above supports this writer’s perspective of the need for criminal forfeiture of assets in excess of legitimate earnings.
It is also proposed that in shifting the burden of proof in money laundering cases, the proof of assets in excess of legitimate earnings in the proceedings must conform with constitutional provisions. Three fundamental steps of compliance with constitutional guarantee on criminal forfeiture include:
1. The ability to trace assets subject to forfeiture or proceeds of crime in whatever form;
2. The ability to restrain by judicial order, dealings on such assets; and
3. Statutory authorization of a judicial body to issue a final forfeiture order over assets that have been restrained or which have been traced.
Based on the foregoing analysis particularly the record of conviction posted by EFCC under Magu’s watch and the recent pronouncement by the Supreme Court in Gabriel Daudu vs FRN, it can be said with sufficient justification that the EFCC and the judiciary in waging war against corruption in Nigeria.
Significantly, the Supreme Court’s radical pronouncement in the case of Gabriel Daudu vs FRN is a major contribution by the apex court to the war against corruption and the judiciary ought to be applauded for handling down this judgment.
Shittu is a Lagos-based lawyer and lecturer at the University of Lagos.
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