Auwal Musa Rafsanjani
The Economic Financial Crimes Commission (EFCC) investigates people in all sectors who appear to be living above their means, and is empowered to investigate and prosecute money laundering, advance fee fraud, counterfeiting, illegal fund transfers, futures market fraud, contract scam, etc; the coordination and enforcement of all economic and financial crimes laws.
The establishment of the Commission in April 2003 was partly in response to pressure from the Financial Action Task Force (FATF) on Money Laundering. The FATF had ranked Nigeria as one of the 23 countries that were non-cooperative in the combined efforts to fight money laundering globally.
Due to identified inadequacies in the 2002 Establishment Act, the national Assembly repealed it and re-enacted the 2004 Establishment Act was signed into law on 4th June 2004 by former President Olusegun Obasanjo.
These inadequacies still persist, and while recent focus has been on whether the nomination of leadership of the agency meets legal requirements, there is a need to focus on the extent to which the provisions of the EFCC establishment Act satisfy public and standard expectations for eligibility of a nominated Chairman and meets the purpose for which a financial crimes institution should be set up.
There has been a long clamour for an amendment that guarantees efficiency and effectiveness by explicit provisions that border on competence and integrity, expand the scope for eligibility to accommodate more suitable/qualified nominees, and limit political interference for security of tenure.
The past administration, despite having introduced legal frameworks, institutions and initiatives, in driving its alleged anti-corruption agenda, failed to realise their objectives.
It is noteworthy that combatting crime remains instrumental to the realisation of the goals of the United Nations General Assembly adopted 2030 Agenda for sustainable development. The SDG 16 in particular, focuses on Peace, Justice and Strong Institutions for reducing illicit financial flows, strengthening the return and recovery of stolen assets and combatting all forms of organised crime; sustainably reducing bribery and corruption in all its ramifications.
As we progress into a new dispensation and anti-corruption regime, we would like to situate our comments and recommendations within the following broad areas:
Strengthening Frameworks for Effectiveness and Efficiency
Following recent debates sparked by the appointment of the new Chairman, and as stated above, there is a need to not only deliberate on whether the nomination of the leadership of the agency meets legal requirements but the extent to which the provisions of the EFCC establishment Act satisfy public and standard expectations for eligibility of a nominated Chairman and meets the purpose for which a financial crimes institution should be set up.
Since its establishment, stakeholders have continued to insist that the law establishing the EFCC is not only restrictive and discriminatory, but that it unjustifiably shuts out Nigerians with equal or even greater competence and patriotism to head the anti-graft agency.
There is an urgent need for reforms to enable anti-corruption institutions like the EFCC carry out their mandate effectively and independently, without undue influence and the new chairman needs to lay a foundation for wide consultations on this process.
This would set the stage for a comprehensive interrogation of the conceptual, structural and operational frameworks of the commission with a view to identifying its strengths, weaknesses, opportunities and threats towards informing recommendations on specific ways its operations and administration can be more effective and efficient.
It is instructive to note that such a process demands wide consultations with various state and non-state stakeholders to enrich and ensure the robustness of these reforms and to address cross-cutting issues.
Strengthening Measures to Prevent Corruption
Past administrations of the EFCC have secured a commendable number of convictions, and more recently, a total of 3785 (Three Thousand Seven Hundred and Eighty-five) convictions were recorded across all its Commands in 2022, recovering over $121 million (about N51 billion at the average exchange rate of N423/$ for 2022) and non-cash assets.
With its 2022 budget at over N43 billion, the commission’s operations have however come at great costs at the expense of taxpayers. As a cost-effective and proactive way of conducting its operations, the EFCC should explore opportunities for strengthening preventive mechanisms, including but not limited to strategic collaborations and integration with relevant agencies for real-time data and information-sharing.
Formulating strategies to prevent corruption will also entail enhancing the EFCC’s capabilities, which includes fostering integrity within the organization and establishing frameworks that guarantee transparency and foster accountability in public administration.
Improving the Quality of Convictions
While the nominal convictions recorded by the Commission are impressive, the quality of convictions are not. Frequent media announcements of high-profile arrests have only led to a few convictions, even in seemingly open and shut cases, to the dismay of both local and international observers.
Last year, despite the low number of convictions for politically exposed persons (PEP), the Council of State on the recommendation of the then President, pardoned and released two convicted former governors from prison – Jolly Nyame of Taraba and Joshua Dariye of Plateau, whose prison terms were upheld by the Supreme Court.
The lack of significant political convictions however leaves a lot to be desired. There is a long list of individuals and politically exposed persons who have been on the EFCC wanted list for years without prosecution or convictions. The Commission needs to ensure that it conducts thorough investigations of all public officers and politically exposed persons (PEP) named in the Pandora papers, Panama Papers, Paradise Papers, Genko scandal and FinCEN Files while those found guilty be made to face the full wrath of the law as a deterrent to others.
Additionally, in a recent contract and procurement fraud survey, the new Chairman revealed that between 2018 and 2020, ₦2.9 trillion meant for some government projects was diverted into personal use by contractors. It is our hope that this revelation will inform investigations and prosecution of those complicit in this fraud.
Transparency and Accountability
There is an increased need for the demonstration of greater transparency and accountability to the Nigerian public, especially with regards to operations, budgets and expenditures. In promoting public confidence, both locally and internationally, we encourage the Commission to adopt a well-designed and operational system of asset declaration that can be an important element in the overall anti-corruption and integrity system through “asset declaration available for public scrutiny”.
Professional Conduct in Investigation, Arrest, Prosecution, and Public Engagement
Anti-corruption is a collective effort, and it is thus imperative that Commission staff discharge their duties and engage the public with the utmost professionalism to restore its confidence and support.
Nigeria has a terrible human rights profile and according to a June 2023 report by the Human Rights Measurement Initiative (HRMI), has a below average performance when compared with other countries in Sub-Saharan Africa.
Investigations– There have been countless accounts and a growing public angst against the unethical practices of anti-corruption agencies across the country. The Commission has been accused of embarking on media trials rather than collecting hard evidence before effecting arrests and prosecutions.
It cannot be overemphasised that thorough investigations must be conducted to a satisfactory level before prosecution and when accused persons are brought before the court, proper charges must be made against the person(s), facilities must be availed, such as legal representation and the charges against the person must be within the law.
The new leadership has the opportunity to change the narrative by ensuring that the conduct of the Commission’s officials is professional during arrests and when addressing the public and the Chairman must enforce a zero tolerance for corruption, indiscipline and unprofessional conduct. The EFCC needs to also embrace a culture of adapting to evolving forms of corruption through digitisation.
Arrests– Recent arrests like that of the former Imo state Governor, Rochas Okorocha have led to accusations that the Commission deploys unsavory and unlawful tactics in its arrests. These processes are not in tandem with the rule of law and are a clear violation of the rights of any accused or suspected individual, and we urge the new chairman to make fairness and justice his watchwords while discharging his duties.
Public engagement– There is a need to strengthen public engagements through effective communication and feedback channels. According to a public perception survey by Chartered Institute of Forensics and Certified Fraud Examiners of Nigeria in its review of the National Anticorruption Startefy (2017 – 2021), it was noted that the public awareness of channels for reporting corruption cases remains perceptively low, as well as the effectiveness and the level of protection whistleblowers.
Anti-corruption agencies frequently face intense scrutiny from various quarters and delays in their response to corruption issues are often seen as either incompetence or political bias. The agency’s image can be heavily influenced by public and media perceptions, pushing it into a defensive stance.
The Commission should thus continuously engage the public to provide sufficient and clear information and work closely with the media to ensure the message is accurate. The Commission should also not operate in isolation and must see itself as an institution active in the public sphere where building coalitions and shaping public opinion are part and parcel of its own sustenance and effectiveness. It must thus maintain political neutrality and focus on its technical mandate, while desisting from joining issues with the public.
Strengthening Domestic and International Collaborations for Collective Impact
The fight against corruption is a monumental task that cannot be undertaken by the EFCC alone and fostering collaborations and harmonising inter-agency operations is crucial to mitigating corruption. While we applaud the Commission for proactively establishing strategic collaborations with other national agencies to mitigate corruption, these collaborations are yet to yield significant reduction in corruption.
The Commission should take better advantage of its collaborations with agencies like the Nigerian Content Development and Monitoring Board (NCDMB), Nigeria Extractive Industries Transparency Initiative (NEITI) through the Extractive Industries Fraud Section of the Commission, Federal Inland Revenue Service (FIRS), and the Presidential Artisanal Gold Mining Development Initiative (PAGMI).
A lot needs to be done to improve on these strategic partnerships, including extending it to the media, religious bodies and the civil rights groups as the collaborative efforts will greatly reduce the scourge of graft and set Nigeria on the path to greatness.
Further to this and at the international level, the new leadership should reestablish and optimise the Commission’s already existing alliance with international security organisations such as the Federal Bureau of Investigation (FBI) and the International Police (Interpol), among others.
The coordinator of the criminal networks sub-directorate of its organised crime unit during his visit to the Commission in September 2023 stressed this and sought a collaboration towards tackling the “Nigerian organised crime groups” across the West African sub-region. Collaborations of this nature should be welcome towards identifying members of African organised crime groups, both within Africa and internationally, and linking them to their specific criminal organisations by improving the exchange of information and developing tailored operational initiatives.
The past administration had aligned with the Open Governance Partnership (OGP) and Global Forum for Asset Recovery in addition to existing commitments to AU and ECOWAS conventions against corruption, and the United Nations Convention Against Corruption (UNCAC). There were however shortfalls in fulfilling expectations of these alignments but the Commission could advance these relationships and outcomes by subjecting itself to periodic reviews of its progress in implementing the articles of conventions.
Complementing the Reforming of the Financial System
Despite the powers of and the checks that have been put in place by the CBN and other relevant institutions regulating the sector, it appears that the system is being manipulated as Nigeria loses between $15 – 18 billion annually to illicit financial flows (IFFs).
The banking sector has been largely implicated in money laundering where they have been instrumental in the initial entry or placement phase that involves the initial movement of an amount of money earned from criminal activity into some legitimate financial network or institution.
This illicit act embedded into a legal trade has pervaded both the national and international business and banking industry with unabated vigor. In 2021, a directive was issued by the then chairman of the Commission, for operators in the Nigerian financial system, particularly bankers to declare their assets as from June 1, 2021.
That directive was rightly in line with Sections 1 and 7 of the Bank Employees, etc. (Declaration of Assets) Act 1986, which compelled Bank employees to make full disclosure of assets within fourteen days and provides a 10-year imprisonment sentence on conviction for offenses of unjust enrichment, respectively.
Sustaining this initiative will ensure adequate measures in sanitising the nation’s financial system by helping to prevent money laundering and illicit financial flows (IFFs) through which terrorism is largely funded, to effectively tax bank executives, and to expose illegal financial transactions. It holds true benefits for reducing corruption in the banking sector and will serve to strengthen and complement the regulatory role of the CBN, the assessment role of the Auditor-General of the Federation on all public account records and oversight role of the National Assembly, as well as numerous existing anti-corruption instruments, including but not limited to the Declaration of Assets Act (1986), the Treasury Single Account policy for reducing the proliferation of bank accounts operated by ministries, departments and agencies (MDAs) towards promoting financial accountability among governmental organs; the Financial Transparency policy (2019); the Banks and other Financial Institutions Act; the Money Laundering (Prohibition) Act, 2011 (MLPA), Terrorism (Prevention) Act, 2011, Central Bank of Nigeria Anti-Money Laundering/ Combating the Financing of Terrorism (AML/CFT) Regulation, 2009 (as amended) and other AML/CFT Guidelines.
Asset Recovery: Constitution of Legal Team
On May 12, 2022, President Muhammadu Buhari signed the Proceed of Crime (Recovery and Management) Bill into law making it an Act in a bid to fight against corruption, money laundering and illicit movement of stolen funds. Recovered assets, however, still remain a small fraction of around $17bn, which Nigeria loses annually through money laundering, tax evasion, embezzlement, looting and other crimes in the form of illicit financial flows.
Despite the limitations on the use of non-conviction provisions, the volume of domestically recovered assets has been considerably boosted since 2016 due to the greater use of non-conviction approach coupled with the implementation of key policies such as Whistleblowing policy, Voluntary Oshore Assets Regularisation Scheme (VOARS), Treasury Single Account (TSA), Voluntary Assets and Income Declaration Scheme (VAIDS), and others.
The Whistleblowing policy recovered allegedly 7.8 billion Naira ($25 million), $378 million and £27.800 between November 2016 and 2018 according to the government figures. However, there remain issues with the absence of independent verification of the volume of recovered assets as well as the alleged conflicting, unconstitutional and cost-intensive approach to stolen asset recovery under the past administration.
There have been past instances of the AGF taking over cases being investigated and prosecuted by the EFCC, which while constitutional, questioned the sincerity of the intervention as the cases tended to never reach a satisfactory legal conclusion.
Instances include, the questionable request by the former AGF for payment of $17 million to two lawyers for performing an already completed role in the return of $321 million Abacha loot, his involvement in the controversial $6.6 billion arbitration award to Process & Industrial Developments Limited (P&ID), as well as his controversial advice for the federal government to discontinue the trial of suspects in the $1.1 billion Malabu scandal, and the widely condemned reinstatement of suspended former boss of the Nigeria Pension Task Force.
In all these cases, the EFCC had satisfactorily progressed in their investigations and litigation before the cases were hijacked. This lack of inter-agency coordination and the involvement of consultants for representation of the federal government interests by the AGF is highly unjustifiable, creates avenues to perpetuate even more fraud and a disservice to Nigeria’s democracy.
While we condemn this unconstitutionality in strong terms, we implore the new administration to ensure synergy, clarity in the separation of agency roles and responsibilities and effective coordination of responsible institutions in the administration of criminal justice.
Reconstitution and Expansion of EFCC Board
While the governing Board of the agency was only just inaugurated in January 2022, after six years of operating without one, the constitution of the board lacks an effective spread. There is a need to include non-state actors to reflect balance and benefit from the diversity of perspectives.
To this end, more respected technocrats, jurists and civil society figures should be appointed to serve on the boards of the anti-corruption agencies and reduce the de facto control board members have overstaffing and operational decisions.
Independence of the Commission
Pending the opportunity for legislative reforms that guarantee the true autonomy of the Commission, free from political influence, the Commission must be seen to hold public interests at heart in the fulfilment of its statutory mandate, without pandering to the whims and caprices of political actors. It must also desist from public confrontations and its tendency to protect political interests.
The Civil Society Legislative Advocacy Centre (CISLAC), the national chapter of Transparency International (TI-Nigeria), believes that national growth and development requires collective effort, and we remain committed in our resolve to lend our voice and support to positive strides that have the potential to promote transparency and accountability and hold the interests of the citizens and the country at heart as it pertains to security, socio-economic development and national prosperity.
*Rafsanjani is the Executive Director Civil Society Legislative Advocacy Centre(CISLAC)& Head of Transparency International Nigeria.
There is an urgent need for reforms to enable anti-corruption institutions like the EFCC carry out their mandate effectively and independently, without undue influence and the new Chairman needs to lay a foundation for wide consultations on this process