The Special Assistant to the President on Justice Reform and International Relations, Mrs. Juliet Ibekaku-Nwagwu, fielded questions from Davidson Iriekpen on the new regulation signed by the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, empowering him to manage all assets recovered as proceeds of crimes
What are implications of the regulation giving power to the AGF on recovered assets?
As explained by the Attorney General and Minster of Justice, Abubakar Malami, SAN, the Asset Tracing, Recovery and Management Regulations, 2019 as contained in the Federal Government Gazette Vol. 106, No 163 was informed by the need to regulate the procedures for the tracing, recovery, management and disposal of illegally acquired assets as required under various extant legislation such as the EFCC Act, 2004, the ICPC Act, 2000, the Money Laundering (Prohibition) Act 2011 as amended in 2012, the Terrorism (Prevention) Act, 2011 as amended in 2013, the Nigeria Financial Intelligence Agency Act, 2018 as well as the Mutual Assistance in Criminal Matters Act, 2019.
In essence, it is not the regulation that is giving the Minister of Justice the power, it is the law setting up these anti-corruption agencies as well as other laws that have provisions on the recovery of assets. You are aware that a regulation is a secondary legislation and not a primary legislation.
For example, Section 31 (4) of the EFCC Act provides that “the Attorney General of the Federation may make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to the Act”
Therefore, by issuing this Regulation 2019, the Attorney General is merely complying with the provisions of the law. It is important to reiterate that Section 4 of the Regulations affirmed that the powers of the law enforcement agencies and anti-corruption agencies to recover assets are maintained under the Regulations.
Do the anti-corruption agencies think AGF is interfering in their affairs?
It is in the nature of human beings to try to protect territories. In this case, there is no territory to protect because this is not a personal business. Every agency of government is working in the best interest of the people of Nigeria and therefore is expected to work within the ambits of laws passed by the National Assembly. The critical questions I expect people to ask are the following (a) Is HAGF acting in accordance with the law? What are the problems that a new law or a regulation will cure? How does it address existing problem?
In the press release from the AGF which THISDAY also reported, he listed the benefits of the Regulations to include the provisions set out in Sections 3 to 11, particularly the need to coordinate all agencies responsible for tracing, recovery and management of assets. Secondly, he reiterated the need to collate the data on recovered assets and the maintaining of a database of all assets recovered in Nigeria or outside Nigeria. The essence of this is to ensure that he can properly brief the President and also be able to explain to Nigerians the number of assets recovered and the value of those assets.
Were there suspicions about mis-management of recovered assets?
There have been reports in the past about the lack of comprehensive and coherent records of records assets and properties that are littered across the country. There has also been public outcry that led to the National Assembly convening public hearings and audits in the past. However, since 2015, when President Muhammadu Buhari came into office, he directed the Attorney General of the Federation to take steps to coordinate and brief him on the issues affecting the transparency of recovered assets.
As a matter of fact, a Presidential Committee on Asset Recovery was set up in 2017 chaired by the Vice President with a view to compelling all the agencies to submit regular reports. Subsequent to that, a sub-committee on asset tracing was also set up under the former Minister of Finance with a view to verify all the reports of assets submitted by the anti-corruption agencies. It is unfortunate that during the process of this verification, some agencies deliberately did not submit their reports to the relevant committees or just simply refused to participate in the meetings. This led to the Presidential directive that stopped the disposal of all assets pending the audit of all the seized, confiscated or forfeited assets.
The directive also required all the agencies to stop the use of multiple accounts for recovered assets and to ensure that all funds related to recovered assets or interim forfeitures are paid into the Central Bank. Another directive was also issued in collaboration with the Chief Justice of Nigeria, which required all orders and rulings of courts to direct funds forfeited to the Federal Government of Nigeria to be paid into the Asset Recovery Account at the Central Bank of Nigeria. The same directive is applicable of internationally recovered assets.
As part of the compliance with this presidential directives, the AGF set up the Asset Recovery and Management Unit to assist in developing policies, monitoring of recovered assets, coordinating agencies and also providing records and reports on a periodic basis to the AGF who in turn provides this report to the president for his further directives.
Let me also add that in addition to the Regulations, the President has also directed the HAGF to finalize the review of a Proceeds of Crime Bill that will be submitted shortly to the National Assembly. This Bill when passed into law will lead to the establishment of a central agency that will undertake the responsibilities of ensuring greater transparency and accountability in the management of recovered assets.
It is important that Nigerians understand that recovered assets are funds stolen from public treasury or that has connection with resources belonging to the people of Nigeria. The process of recovery when you go through the criminal justice system is very tedious and complex because the onus is on the prosecutors to prove that the fund/assets is linked to crime. This is why Nigeria passed the Money Laundering Prohibition Act, 2011 as amended in 2012 in compliance with global standards.
There are allegations that some assets were arbitrarily seized
It is not only funds related to corruption that could be seized or forfeited to government. Proceeds of other criminal activities or unlawful activities can be seized or forfeited once the person is convicted or the person pleads guilty of forfeits the assets through a non-trial procedure.
If any person or entity feels that the law enforcement agency or anti-corruption has seized or forfeited his property or assets without a procedure recognized by law or without voluntary forfeiture, the person has a right under the law to approach the court for the variation of the previous orders given by the court. This is also why the Regulation 2019 is important, as it will enable a proper oversight and review of procedures for recovery of assets that are not in compliance with the law.
Will the new regulations make disposal easier?
Absolutely! Section 6 to 10 of the Regulations provides an expedited procedure for the management and disposal of assets.
It provides that all seized assets must be recorded in a database that is already set up in the Asset Recovery and Management Unit under the Office of the Attorney General. Where such assets are subject to deterioration, the AGF in consultation with the agency and the owner of the property shall dispose of the property and the funds shall be kept in the Interim Forfeiture Account at the Central Bank. In the same way, all confiscated assets or those under interim forfeiture shall also be entered into the database and shall be monitored by the Asset Recovery Unit. If there is no diligent prosecution by the relevant agency, the AGF shall determine if he should take over the prosecution and recovery of those assets within 180 days in order to get the courts to take a decision in a more expeditious manner.
With regard to the final forfeiture orders obtained regarding assets, the relevant agency must file notice with the AGF within 60 days of such an order so that the disposal can commence immediately.
Section 10 provides that the AGF shall set up a structure for the disposal of the assets to include relevant agencies that are responsible for recoveries of various assets.
As you can see the timeline set out above means that all agencies will work round the clock to ensure expeditious disposal and also recovery and management in a more transparent manner.
Finally, let me add that once assets are disposed of, section 11 provides that all realised funds should be paid into the Asset Recovery Account in the Central Bank. At this point, the management of those funds becomes the responsibility of the Minister of Finance.