Nigeria Goes Rogue From Merida Convention

Seyi Olu Awofeso · Aug 13, 2012 , 08:45 PM

Nigeria’s Economic and Financial Crimes Commission (EFCC) announced last week that between 2007 and 2010, it recovered stolen cash and some other illicit assets totalling two (2) trillion Naira.

When the 2011 figures later become available, along with those of 2012 – in particular, considering by extrapolation from previous years’ oil imports’ estimates that approximately 1.7 trillion Naira was probably stolen under Nigeria’s Oil Subsidy Subvention Scheme in the year 2011, the projected total recoveries by EFCC would trench close to 4.7 trillion Naira – a*staggering amount almost*equivalent to the entire federal government’s past year’s annual budget.

On those facts, Nigeria is now totally*bogged in a theft pandemic of un-precedented proportions.

No country of its size can survive such banditry; with a middling and mostly poor 160 million plus population. All of Nigeria’s law and order institutions, including the Courts of law, must now swiftly respond with a sense of alarm, if Nigeria is to avoid withering away.

To foster that sense of alarm, Judges of all courts of law need quickly bear the first truth in mind; that the Nigerian government was the early bird to sign on the very first day - December 9, 2003 - in the city of Merida, Mexico, when the United Nations Convention Against Corruption was laid down on the table for countries’ voluntary signatures. Nigeria’s National Assembly later ratified this Convention a year later, on December 14, 2004.

By*jumping ahead to sign and ratify, the Nigerian government indicated its readiness to bind all its institutions; including Judges of all Courts, to the express obligations of that Convention. But after well-nigh on nine years since signing the Merida Convention, Nigeria has, paradoxically, become mired in stratospheric thefts - facilitated by “public officials”, for the most part.

Relevantly at Article 3, the U.N Merida Convention self-expressly declares that it shall apply to all State Parties in the “prevention, investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of the proceeds of offences established in accordance with this Convention”.

To fulfil this specific obligation as a State Party, Nigeria enacted the EFCC Act and inserted in it a provision to aid investigation and detection of tainted or stolen assets, and, enable their interim seizure. That wholly pre-emptive law is Section 27 of the EFCC Act (as amended in 2004) stating as follows:

•*(1) Where a person is arrested for committing an offence under this Act, such a person shall make full disclosure of all his assets and properties by completing the declaration of Assets Form as specified in form A of the Schedule to this Act.

•*(2) The completed Declaration of Assets Form shall be investigated by the Commission

•*(3) Any Person who –

•*(a) knowingly fails to make full disclosure of his assets and liabilities; or

•*(b) Knowingly makes a declaration that is false; or

•*(c) fails, neglects or refuses to make a declaration or furnishes any information required, in the Declaration of Assets Form; commits an offence under this Act and is liable on conviction to imprisonment for a term of five years.

This Section 27 of the EFCC Act, as drafted and enacted, with a mandatory clause at its sub-section one (1) above, is legislatively accorded international afflatus as the express fulfilment of Nigeria’s obligation under Article 3 of the United Nations Convention Against Corruption (2003). Therefore, no Judge or court is lawfully permitted to refuse to give effect to Section 27 (1) of the EFCC Act, which requires anyone arrested in connection with a financial crime to promptly declare his assets; fully and truthfully.

For the avoidance of doubt, Article 31 of the United Nations Convention Against Corruption further provides ten (10) other clauses giving legality to such full disclosure. It declares that:

*1. Each State Party shall take, to the greatest extent possible within its domestic legal system, such measures as may be necessary to enable confiscation of:

(a) Proceeds of crime derived from offences established in accordance with this Convention or property the value of which corresponds to that of such proceeds;

(b) Property, equipment or other instrumentalities used in or destined for use in offences established in accordance with this Convention.

2. Each State Party shall take such measures as may be necessary to enable the identification, tracing, freezing or seizure of any item referred to in paragraph 1 of this article for the purpose of eventual confiscation.

3. Each State Party shall adopt, in accordance with its domestic law, such legislative and other measures as may be necessary to regulate the administration by the competent authorities of frozen, seized or confiscated property covered in paragraphs 1 and 2 of this article.

4. If such proceeds of crime have been transformed or converted, in part or in full, into other property, such property shall be liable to the measures referred to in this article instead of the proceeds.

5. If such proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds.

6. Income or other benefits derived from such proceeds of crime, from property into which such proceeds of crime have been transformed or converted or from property with which such proceeds of crime have been intermingled shall also be liable to the measures referred to in this article, in the same manner and to the same extent as proceeds of crime.

7. For the purpose of this article and article 55 of this Convention, each State Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or seized. A State Party shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.

8. States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the fundamental principles of their domestic law and with the nature of judicial and other proceedings.

9. The provisions of this article shall not be so construed as to prejudice the rights of bona fide third parties.

10. Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a State Party.

As such, in Nigeria’s context, Section 27 of the EFCC Act is the domestic law deemed referenced at sub-section 10 of the U.N Convention (above). And,*that same*Section 27*is literally couched in mandatory terms, it is thus to be judicially interpreted in those mandatory terms, without any*question, because it does not touch the otherwise protected right against self-incrimination in the context of a criminal trial, which Section 36 (11) of the 1999 Constitution, as amended, protects.

A mandatory interpretation of Section 27 of the EFCC Act renders it immune to non-descript challenges of invasion of privacy, sounding in torts, because an international obligation to curb, detect and punish corruption - as stated in the recitals of the declared purposes of the U.N Convention Against Corruption, and enacted domestically as the EFCC Act - legally displaces any such specious, defence of “violation of privacy” in extent of its inconsistency with the EFCC Act.

That is the law - by parity of reason from analogy with JSC M.E Ogundare’s lead judgment in Abacha v Fawehinmi (S.C. 45/1997). This is the only law that can best give Nigeria a slender hope of ever retrieving itself from the precipice to recover a chunk of the 400 billion dollars reckoned to have been stolen so far and salted away.

A fudged legal reasoning by a Judge or Court of law*to attenuate the directness of this purposive interpretation, or otherwise; to fetter or compromise its full and truthful disclosure requirement, will hold Nigeria taut in the grips of revolutionary pressures.

……….Seyi Olu Awofeso is a Legal Practitioner in Abuja

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