Asset Recovery in Nigeria: Experiences from the Past

Nuhu Ribadu

I am happy to be part of this epoch making workshop that is most timely and appropriate given the atmosphere in the country as far as the fight against corruption is concerned. It is very thoughtful for the organisers of this event to bring experts together and brainstorm on important aspects of the war against corruption with a view to streamlining whatever is in existence and strengthening what needs to be strengthen.

For me, this period is an important episode for this work being a time that we have the most vital tool needed in this war, namely political will. I see in the present political leadership the will to allow the war to be fought and there is the need for all of us to support it in whatever way possible. This is immensely needed.

We are also lucky to have a set of people that are very passionate and committed in charge of the process. Added to this, we have a plethora of practitioners, intellectuals, activists and the media that are keen and supportive of the campaign. This opportunity has to be seized by setting a very serious, strategic and focused direction to secure the future of this work and address the major impediments once and for all. It is almost a similar condition that I enjoyed when I chaired the EFCC which enabled us to modestly set a very good foundation that the country still look at with pride.

The decision by this committee to create a platform for discussions on asset forfeiture proceedings and management is very commendable. Asset recovery or forfeiture is an integral component of the anti-corruption work as it serves many purposes within the work. First, it serves as restitution in the sense that what was ill gotten is returned to the right owners. It also functions as deterrence to others as those who illegally enrich themselves get stripped of that wealth overnight. Similarly, through proceeds of final asset forfeiture, government can make extra money that can be channelled to projects that would enable growth and development of the state.

As a specialised element of this work, asset recovery requires professional and dedicated people comprising of investigators, prosecutors and managers to handle it jointly for effectiveness and to drive the maximum benefits. A point therefore has to be made on the importance of diligent investigation to successful and fruitful asset recovery and management. Whatever success that is made of forfeiture or recoveries depend on the thoroughness of investigation and diligence of prosecution and ability of investigators to trace whatever is traceable and recoverable. The success of asset forfeiture begins with the investigation.

Surprisingly, however, in spite of the lack of adequate legal guidance and other limitations, Nigeria is perhaps the most successful country in terms of asset recoveries from foreign lands. Over time, a lot of money has been successfully returned to us in assets laundered in several countries.

Efforts at Recoveries in
pre-EFCC days
The most significant case of assets recovery prior to the establishment of the EFCC is perhaps the Abacha loot recovery which began not long after his death in June 1998.
As a legal officer and prosecutor then with the Nigeria Police, I was attached to the team that worked on the Abacha case. With paucity of laws regarding criminal and civil recoveries and forfeiture, we relied on procedure we termed Administrative Confiscation, a mechanism of confiscating assets through non-judicial means. Within the first few months, we recovered billions domestically from such forfeitures.

Subsequently, the federal government hired foreign lawyers, notably Enrico Monfrini, to begin forfeiture procedures from other jurisdiction, especially the Swiss government. This foreign aspect of it was largely handled by the Office of the National Security Adviser.

However, I was partly involved with the negotiations with the Swiss authorities which presented us with some unique experience at the time. Under Swiss laws, forfeitures, irrespective of origin of the illegal funds, is made to the Swiss government and Nigeria had to therefore negotiate with Switzerland on getting our money back. Their condition was that the money had to be used for some specified intervention projects, under their supervision. However, we got a way around it by involving the United Nations and the World Bank as intercessors. Eventually significant amounts were returned to the country which was used in budget financing.

EFCC: Early days and
foundation for Recoveries
The most important step that helped us tremendously with our work on recoveries and other areas of the work generally is the olive branch we extended to various stakeholders early enough.

At home, we ensured that from the very beginning EFCC started off as a multi-stakeholder organisation and we therefore brought in professionals from agencies such as the Police, FIRS, CBN, NDIC, Customs, SEC, among others. We leveraged on this hybrid composition to handle diverse aspects of the work and make modest success of technical areas that would have otherwise posed a challenge. We also brought the Code of Conduct Bureau close to us and gingered them up which enabled us to assess their records of asset declaration forms for public officers.

As a tracking tool and best practice step, we came up with the Nigeria Financial Intelligence Unit within the EFCC to help us keep tab of what is going on and compare notes with others.

With these, I went out of my way to link up and establish and sustain good working relationship with sister organisations in different countries like the Metropolitan Police, FBI in the US and Scorpions in South Africa. This relationship later proved invaluable and is being harnessed till date, enabling us to often times bypass long queues of bureaucracy to help each other in joint investigations. This initial ground work also assisted us in evolving creative ideas including bypassing hurdles such as immunity.

Notably, the EFCC Act is the first to treat asset forfeiture in some details. Even though it was also fairly inadequate, it was still good enough for a start. What we therefore explored largely was informal assistance to get the work done.

It was this help and understanding that we benefited from in handling the cases of people like former governors DSP Alamieyeseigha and James Ibori as well as the fraudster Emmanuel Nwude. Because these cases involved extensive network of assets in different jurisdictions we had to rely on our allies in those countries to enforce forfeiture orders we obtained from here through Mutual Legal Assistance and otherwise.

Management of Proceeds:
The primary principle of assets recovery is to ensure that proceeds and character of the subject matter of the crime are preserved and protected pending the final judgement on the matter. This is important because a case can be decided either ways and where a property is finally forfeited or returned to a suspect, it should be in a good condition as to be of value to the beneficiary of the judgment.

Secondly, it should also be made sure that the right of the individual to enjoy the ownership and use of his property is guaranteed. This calls for flexibility so as not to be harmful to the society in the process of restraining an asset by way of eviction of tenants or sending innocent people off their means of livelihood.

Therefore, as a process that involves money and other valuables, and given the misunderstandings or suspicions it generates sometimes, it is only apt that asset forfeiture/recovery process and management is looked at critically. These suspicions usually arise because we don’t have adequate provisions in the laws to guide the process. Those of us who happened to work on issues like that largely apply our own discretion to the little provisions in the extant laws. Such a law, I believe, is most needed.

However, forestalling any suspicion or false alarm require transparent handling of recoveries through effective management which will safeguard the recovered assets from depreciation, movement or destruction, especially before final forfeiture.
In the early days of our work at the EFCC, the management of recovered assets was made part of tasks of each team handling the case.

Though a manager is appointed to manage the real estate, the supervision was left for each team. For movable assets, we had exhibit keeper who takes stock of all such recoveries from every case. I initially resisted the idea of setting up a section to look after these forfeitures to avoid ending everything into bureaucracy. However, as the work expanded, we had to come up with the Assets Forfeiture and Recovery Section to be the custodian of such assets and be our liaison with asset managers.

For businesses that were running, as I pointed out earlier, we prioritized saving the businesses by considering the larger picture than just shutting down the premises. It was the same restraint we exercised in handling cases involving Globacom, Honda Place and The Sun newspapers.

Considering the care we took in handling whatever was in our custody, I find it baffling and disheartening when I hear people make insinuations about how we handled recovered assets. It is the most unfair remark but certainly not totally unsurprising giving that the fight against corruption is essentially a thankless job.

Contrary to such insinuations, it was some people not us or even the government that made money from some of those cases. A case in point is the Halliburton investigation where after we had done the bulk of the work it was turned into a milking cow for some senior lawyers who made millions of dollars out of it.

Conclusion
Owing to the limitations of the existing laws as regards asset forfeiture, the current attempt at enacting a law to cover the spectrum of issues around forfeiture is a welcomed development.

On a larger scale, I like to suggest that a high level serious consultations be held between all the three arms of government to discuss steps and measures of evolving a very comprehensive national strategy on the fight against corruption that would enumerate the roles expected of the executive, the legislature and the judiciary.

We should have a strategy that is a product of a consensus. Out of this strategy we can agree on having new laws or institutions with clear mandate and responsibilities of each arm of government for easy operation and buy-ins from the beginning.
The federating units should also be persuaded to sign on to this strategy so as to ensure that whatever emerges is what everyone consents to.

There is also the need to come together and make the best use of what we have, presently. We have adequate mechanisms and tools to fight corruption through the instruments of such laws and agencies as ICPC, EFCC, NEITI, BPP, AMCON, NDIC, CCB, among others.

From my personal experience, and from the example of EFCC as an organisation, this work is better managed when we have all components under one roof that caters for everything, instead of having several agencies with overlapping and duplicating functions. Divided agencies tend to create problems, when investigators, prosecutors and custodians of assets are from different places. There is bound to be missing links and confusion.

Lastly, I like to appeal to Nigerians to give the current government’s fight against corruption a chance and shun the undue politicisation of issues. This war is about the survival of our country and the right environment has to be created for malfeasance to be cleaned and the right foundations and tools set for greater Nigeria.

Unfortunately, emotions are often put forward before national interest thereby rubbishing what is otherwise noble and patriotic undertaking. Those of us that have done this work and those presently doing it have been unduly vilified for nothing other than daring to confront the corruption monster. This attitudinal change is needed first if we are to make enduring headway in this all-important battle.

-Being a presentation by the pioneer chairman of the Economic and Financial Crimes Commission at the National Stakeholder Workshop on Recovery and Management and Management of Recovered Assets organized by the Presidential Advisory Committee