Financial crime prosecution, legal certainty and exigency of policy: case of Nigeria's EFCC

Author:Tayo Oke
Position:OKEASSOCIATES INTERNATIONAL, London, UK
SUMMARY

Purpose – In its fight against money laundering involving politically exposed persons (PEPs), the Economic and Financial Crimes Commission (EFCC) has the dual mandate of maintaining equilibrium between two fundamental, but sharply contradictory objectives: establishing guilt beyond a reasonable doubt, and responding to the policy imperative of nipping corruption in the bud through a pro-act... (see full summary)

 
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Introduction

Nigeria's Economic and Financial Crimes Commission (EFCC) was established in 2004 ( The EFCC (Establishment Act), 2004 ). Despite the wish of some, the organisation was not an original Nigerian invention; instead, it was pushed on the country's political leaders by the international financial institutions, donor agencies and Western governments, “which saw Nigerian laws as grossly inadequate in dealing with financial crime” ( Owolabi, 2007 ). It is also fair to say, in addition, that they were anxious to recast their relationships with Africa in a new light1. The then Nigerian President, Olusegun Obasanjo, appointed a relatively inexperienced young officer from the Nigerian police force, Nuhu Ribadu, to be its first head. The Nigerian political establishment could have weathered the storm of any homegrown pressure for such an institution, but it could be argued that since it relied so heavily on financial patronage from the West in terms of loans, aid and foreign investment, it felt compelled to establish such a body. Consequently, the Obasanjo regime that set it up did so more out of expediency than conviction ( Oke, 2012a, b ), and this fact helps put some of the difficulties the organization has encountered in prosecuting financial crime involving PEPs into perspective.

According to the organisation's spokesperson its “mandate begins with prevention, investigation, arrest and ends with charging accused persons to court” ( Babafemi, 2011 ). In its fight against money laundering involving PEPs, the EFCC's struggle to maintain equilibrium between legal certainty and exigency of policy rests upon two fundamental, and at times sharply contradictory, objectives. First, considering the legal position:

The burden of proof in a suit or proceeding, lies on that person who would fail if no evidence at all were given on either side […] If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt ( LexisNexis, 2011 )2.

Second, the general policy direction of the organisation states amongst others:

The EFCC will curb the menace of the corruption that constitutes the cog in the wheel of progress; protect national and foreign investments in the country; imbue the spirit of hard work in the citizenry and discourage ill-gotten wealth; identify illegally acquired wealth and confiscate it; build an upright workforce in both public and private sectors of the economy and; contribute to the global war against financial crimes ( EFCC, 2012 ).

It is clear from the latter that the EFCC is a result-oriented organisation, whose existence needs to be justified against measurable yardsticks. In the same breadth, it is a publically accountable organisation, whose activity is necessarily circumscribed by the due process of law. To succeed, the EFCC needs to have the benefit of a functioning administrative and judicial system devoid of corruption and undue influence. The country's law makers, on their part, need to eschew party loyalty and personal interests in order to ensure that the organisation brings to fruition the task legally assigned to it. This situation is made all the more cumbersome by the fact that many of the law makers are themselves the PEPs involved in the illegal activity which the EFCC is determined to eradicate3. The extent to which the organisation has managed to untie this interwoven layers of desire to emphasis the establishment of effective legal policy while simultaneously promoting the achievement of immediate results, remains open to debate. However, an examination of some of their attempts can help to illuminate the problems faced.

Most egregious cases

The first case to be considered is that of the former Delta State Governor, James Ononefe Ibori, who pleaded guilty in February 2012, at Southwark Crown Court, to ten counts of conspiracy to launder the proceeds of crimes from the state, and was sentenced to 13 years in jail4. The honourable justice Anthony Pitts describing the amount of money involved, suggested that it could be in excesses of £200 million and commented that “the confiscation proceedings may shed some further light on the enormity of the sums involved” ( Tran, 2012 ). In a swift reaction to the sentence the UK International Development Secretary, Andrew Mitchel said, “James Ibori's sentence sends a strong and important message to those who seek to use Britain as a refuge for their crime” ( Tran, 2012 ). In press coverage in the UK media sources were universal in their condemnation of the former governor producing numerous eye-catching headlines such as: “Former Wickes cashier James Ibori stole £50 million to ‘live like royalty’ after winning election in Nigeria – court told” ( Daily Telegraph, 2012 ), “Former Wickes cashier who became governor of oil-rich Nigerian state jailed for 13 years as judge says £50 million fraud figure may be ‘ludicrously low’” ( Daily Mail, 2012 ) and on a more low key note on the BBC “Former Nigerian governor James Ibori jailed for 13 years” ( BBC, 2012 ).

Ibori had come to live in the UK in the 1980s, and worked as a cashier at a Wickes DIY store in Ruislip, North West London. He was convicted of stealing from the store in 1991, but later returned to Nigeria to enter into politics. On arriving in Nigeria, he changed his date of birth to hide his criminal conviction, the fact of which would have been an impediment to his ambition to become governor. Finding accommodation in the ruling party, the People's Democratic Party (PDP), he soon achieved his goal of winning a disputed election as governor in 1999, securing two terms in office ( Telegraph, 2012 ). According to Anthony Pitts, the presiding judge at his trial, “it was during those two terms that he turned himself in short order into a multi-millionaire through corruption and theft in his powerful position as Delta state governor” ( Telegraph, 2012 ). While the British press were hailing the outcome as a landmark case of money laundering involving a prominent PEP, the Nigerian Government and citizens were left wondering how the former governor managed to evade justice for a number of years in his home country, despite several attempts by the EFCC to convict him ( Sahara Reporters, 2012 ). Ibori had managed to get every case proffered against him thrown out of court, including that presented in the country's Supreme Court, according to the testimony given by his Nigerian lawyer at Southwark Crown Court ( Oke, 2012a, b ). Thus, Ibori had pleaded guilty in the UK to money laundering offences which he had successfully denied in Nigerian courts. The question that arose for many observers is whether it was the incompetence of the prosecution or the corruption of the judiciary that ensured his acquittal in all the previous proceedings against him in Nigeria. Why was the burden of proving his guilt in the UK overcome, but failed in Nigeria? Or, if the burden of proving his guilt was adequately discharged by the EFCC, what then stood in the way of his conviction

It is difficult to answer either of the above questions with precision. There is, however, a general perception of judicial corruption with “impunity” ( This Day, 2012 ), which makes high profile criminal cases against PEPs in Nigeria an arduous task. The US State Department Human Rights Report 2011 ( US Department of State Report, 2011 )5 for instance commented on the Nigerian judiciary stating that:

Although the constitution and law provide for an independent judiciary, the judicial branch remains susceptible to pressure from the executive and legislative branches and the business sector […] political leaders influenced the judiciary, particularly at the state and local level […] official corruption and lack of will to implement court decisions also interfered...

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