NAIRA ABUSE: APPRAISING RECENT CONVICTIONS  By Ifeanyi Kevin Ewuziem Esq

NAIRA ABUSE: APPRAISING RECENT CONVICTIONS By Ifeanyi Kevin Ewuziem Esq

Introduction

Once considered a dead letter law largely due to its non-enforcement, Section 21 of the Central Bank of Nigeria Act (CBN Act) 2007, which criminalizes Naira abuse, has become in recent times quite popular. The resurgence of enforcement initiatives in respect of this might not be unconnected with the controversial Naira redesign policy implemented in the wake of the 2023 general elections. This policy resulted in the purported scarcity of the Naira (especially the 500 and 1000 Naira denominations).

However, in spite of the acute shortage of the Naira notes and to the bewilderment of many citizens, several influential and famous Nigerians made a public spectacle of spraying the redesigned Naira notes at social events and parties drawing strong public criticisms and condemnations. The re-awakened interest of government agencies charged with the responsibility of both enlightening the Nigerian public, and enforcing financial-based crimes can be traced to this period. In the space of a little over one year since the Naira redesign policy, Nigerians have witnessed the suspension of a traditional ruler over alleged abuse of the Naira notes[1] and the conviction of two famous Nigerians[2] under section 21 CBN Act.

 Section 21 of the CBN Act

This Section is structured as five subsections. Subsection (1) prescribes that

“[a] person who tampers with a coin or note issued by the Bank is guilty of an offence and shall on conviction be liable to imprisonment for a term not less than six months or to a fine not less than N50,000 or to both such fine or imprisonment.”

[1] Editorial, ‘Ogun Monarch Suspended for Abusing the Naira Notes’ <https://www.google.com/amp/s/punchng.com/ogun-monarch-suspended-for-abusing-naira-notes/%3famp> accessed 12th April 2024.

[1] In February 2024 an actress Oluwadarasimi Omoseyin, was jailed six months for abuse of the Naira. However she was given an option of fine. See, Deborah Sanusi, Actress jailed six months for spraying, stepping on Naira notes The Punch of 1st February 2024 https://punchng.com/actress-omoseyin-bags-six-months-jail-for-stepping-on-naira-notes The conviction of Okuneye Idris Olanrewaju (AKA Bobrisky) is reported in the media. See eg The Guardian, Naira Abuse: Bobrisky sentenced to 6 months Imprisonment without Option of Fine at https://guardian.ng/news/naira-abuse-bobrisky-sentenced-to-six-months-imprisonment-without-option-of-fine/ accessed 22/4/24

Subsection 2 states that –

“a coin or note shall be deemed to have been tampered with if the coin or note has been impaired, diminished or lightened otherwise than by fair wear and tear or has been defaced by stumping, engraving, mutilating, piercing, stapling, writing, tearing, soiling, squeezing or any other form of deliberate and wilful abuse whether the coin or note has or has not been diminished or lightened.”

“For the avoidance of doubt, spraying of, dancing or matching (sic) on the Naira or any note issued by the Bank during social occasions or otherwise howsoever shall” according to subsection 3, “constitute an abuse and defacing of the Naira or such note and shall be punishable under Sub-section (1) of this section.” The penultimate subsection[3] provides that “[i]t shall also be an offence punishable under Sub-section (1) of this section for any person to hawk, sell or otherwise trade in the Naira notes, coins or any other note issued by the Bank”.

The final subsection[4] defines the words matching and spraying. The former includes “spreading, scattering or littering of any surface with Naira notes or coins and stepping thereon, regardless of the value, volume, occasion or intent”, while the latter includes “adorning, decorating or spraying anything or any person or any part of any person or the person of another with Naira notes or coins or sprinkling or sticking of the Naira notes or coins in a similar manner regardless of the amount, occasion or the intent.”

 

Recent Convictions Under Section 21 of the CBN Act

The two recent convictions for the abuse of the Naira involved a Nollywood actress, Oluwadarasimi Omoseyin, and a popular cross-dresser Bobrisky.

 Oluwadarasimi Omoseyin’s Case

The case of the prosecution was partly: “[t]hat you, Oluwadarasimi Omoseyin, on the 28th day of January, 2023, at Monarch Event Centre, Lekki, Lagos, within the jurisdiction of this Honourable Court, whilst dancing during a social occasion tampered with the sum of N100,000.00 (One Hundred Thousand Naira) issued by the Central Bank of Nigeria by spraying same in the said occasion and you thereby committed an offence contrary to and punishable under Section 21(1) of the Central Bank Act, 2007.”

[1] Section 21(4) CBN Act 2007
[1] Section 21(5) CBN Act 2007

 

She initially pleaded ‘not guilty’ to the charges preferred against her and was subsequently granted bail. But at a resumed hearing, she changed the plea to ‘guilty’ and was convicted accordingly. Premium Times reports that:

The defence counsel, Afuye Adegbola, pleaded for leniency saying, “she’s a first-time offender; she is a mother of one; she is remorseful and pleads for mercy.” He further pleaded for a non-custodial sentence on behalf of the convict. Delivering judgement, Mr Aneke sentenced the defendant to six months’ imprisonment, with an option of N300,000 fine to be paid into the consolidated revenue account of the federation[5].

 

Okuneye Idris Olanrewaju (Bobrisky)

One of the charges brought against Olanrewaju include: “[t]hat you, Okuneye Idris Olanrewaju, on the 24th day of March, 2024, at Imax Circle Mall, Jakande, Lekki, within the jurisdiction of this Honourable Court whilst dancing during a social event tampered with the total sum of N400,000.00 (Four Hundred Thousand Naira) notes issued by the Central Bank of Nigeria by spraying same and you thereby committed an offence contrary to and punishable under section 21(1) of the Central Bank Act, 2007.”

Unlike Omoseyin, Olanrewaju pleaded guilty from the onset and in his allocutus, the informed the court that he was ignorant of the law and if released, he would use his social media platform with over 5 million followers to educate Nigerians on the law against Naira abuse.

He was however sentenced to six months imprisonment without an option of fine. Justice Abimbola Awogboro, while sentencing the convict, said the judgment would be a deterrent to others who are found abusing and mutilating the Naira[6].

General Comparison of Both Cases

Area of Comparison Omoseyin’s Case Olanrewaju’s Case
Gender of convict Female Male
Plea entered upon arraignment Initially, ‘not guilty.’ Subsequently changed to ‘guilty.’ ‘Guilty’.

 

 

 

 

 

 

 

[1] Premium Times ‘Court Convicts Actress of Spraying, Stepping on Naira Notes at Wedding Party’ <https://www.premiumtimesng.com/news/top-news/664514-court-convicts-actress-of-spraying-stepping-on-naira-notes-at-wedding-party.html?tztc=1> accessed 12th April 2024.

[1] Editorial, ‘Court Sentences Bobrisky to Six Months in Prison’ <https://www.google.com/amp/s/punchng.com/breaking-court-sentences-bobrisky-to-six-months-in-prison/%3famp> accessed 12th April 2023.

Sentence Six months imprisonment with an option of N300,000.00 fine Six months imprisonment without an option of fine
Name of Judge Chukwujekwu Aneke J. Abimbola Awogboro J.
Gender of Judge Male Female
Marital Status (and children) Married with a child Single and no child.
Year of Birth 1995 1991
Date of Conviction 2nd February 2024 12th April 2024

 

Conclusion

There are opinions in certain circles that the punishment meted on Olanrewaju was quite harsh. But given the media coverage the Omoseyin case garnered, it would have been expected that all Nigerians, particularly social media influencers and personalities, turn a new leaf. Perhaps, the option of fine given by the judge in Omoseyin’s case created a soft-landing which did not deter future offenders. It should also be noted that the six months imprisonment is the minimum penalty permissible under the Act and therefore section 416(2)(d) of the ACJA which cautioned against the imposition of maximum punishment for a first offender was inapplicable to the case.

 

 

 


NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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kidnapping for Ransom and the Terrorism – economic crime nexus By Queenetta Bassey

Fig.1

Just a few days before the world paid tribute to the resilience, industry and resourcefulness of women, members of a non-state armed group (NSAG) allegedly abducted an unverified number of women, girls and boys – IDPs from the ISS, Zulum, Kaigama, and Arabic IDP camps who were out in the bush in search of firewood. Some days later –  March 7 to be precise 7th of March, 2024, bandits attacked the Kuriga community in Chikun Local Government Area of Kaduna State and kidnapped about 286 students including some teachers at the LEA Primary School Kuriga. The bandits are reportedly demanding one billion naira as ransom for the victims.

 

An unhealthy Spike

From 2011 to 2023, Nigeria experienced a dramatic increase in kidnapping incidents, with various reports and databases documenting the alarming trend. The Nigeria Security Tracker (NST) recorded about 19,800 incidents of kidnapping across the country within the past decade . While The Global Terrorism Database (GTD) identified Nigeria as the country with the highest number of reported kidnappings globally in 2019, underscoring the severity of the situation. Topping the list of most kidnapped persons are women, children, and internally displaced persons (IDPs), who are particularly vulnerable to kidnapping due to their perceived lack of protection and resources. Women and children, often targeted for ransom, sexual exploitation, forced marriage, and recruitment into armed groups, while IDPs face additional challenges stemming from their displacement and precarious living conditions.

 

Children, in particular girls, have been subjected to mass abductions from schools, such as the infamous incidents in Chibok and Dapchi, the recent kidnapping of over 280 school children in Kuriga town in Kaduna State and another 15 children in Gidan Bakuso in Sokoto State all between the ages of eight and fourteen. While some of the abducted children from the Chibok and Dapchi incidences of 2014 have been rescued or released, many including the recent victims of Kuriga and Gidan Bakuso remain missing, enduring unimaginable suffering at the hands of their captors while the search for them by the Nigerian government continues. Women are abducted for ransom or as part of broader criminal activities, including human trafficking, baby making machines and forced labour. The psychological and emotional toll on survivors of kidnapping, especially women and children, is profound and long-lasting, with many struggling to reintegrate into society even after their release.

 

Internally Displaced Persons

Targeting IDPs for kidnap and violations adds an ironic twist to official assurances on the security situation in Nigeria and the state of government’s preparedness to tackle kidnapping for ransom. Displaced by insurgency, tribal and inter-tribal conflicts, violence, and natural disasters, IDPs make up the most vulnerable populations in Nigeria.

The recent abductions of women and girls in three IDP camps in Borno State Nigeria highlights the vulnerability and lack of protection faced by these vulnerable groups, shedding light on the dire situation internally displaced persons, most especially women and children in Northern Nigeria are subjected to and the critical need to address their rights.

It is worth noting that these abductions not only underscores the vulnerability of internally displaced women to various forms of violence, including sexual assault, death, abduction and exploitation but also undermines the efforts of government and human rights organizations in securing the rights of internally displaced women and children.

Secondly, the incident exposes the failure of authorities to adequately protect and support internally displaced populations, particularly women and girls. Despite numerous reports of insecurity and threats within IDP camps, there appears to be a lack of effective measures to prevent such abductions and to ensure the safety of residents.

While the issue regarding the abductions of women from IDP camps remain a security concern, it is further intriguing to note that some of these women have been reported to have willingly returned to the bushes rather than remain at the camps. According to Governor Babagana Zulum of Borno State in a Statement on the 8th of March 2024, over 500 women living in IDP camps had demonstrated their interest in leaving the camp. Were these latest victims really in search of firewood or wandering away from abandonment?

 

Relevant Laws and Frameworks on The Rights of Internally Displaced Persons

In Nigeria, the rights of internally displaced persons (IDPs), especially women and children, are protected by various international and domestic laws, as well as policies and guidelines established by the government. Below are some of the key legal instruments and frameworks relevant to the rights of IDPs in Nigeria:

 

Nigerian Constitution: The Constitution of the Federal Republic of Nigeria 1999 (as amended) under Chapter IV guarantees the fundamental rights of all citizens, including IDPs. These rights include the right to life (Section 33) , dignity of the human person (Section 34), and freedom from discrimination (Section 42), among others.

 

Guiding Principles on Internal Displacement: Nigeria, as a member of the United Nations, is bound by the Guiding Principles on Internal Displacement, which provides a comprehensive framework for the protection and assistance of IDPs. These principles emphasizes on the rights of IDPs to protection, non-discrimination, access to humanitarian assistance, and durable solutions to displacement.

 

National Policy on Internally Displaced Persons: In 2012, Nigeria adopted the National Policy on Internally Displaced Persons to provide a framework for addressing the needs and rights of IDPs. The policy emphasizes on the protection of vulnerable groups, including women and children, and outlines measures for their assistance and support.

 

Humanitarian Assistance Framework: Nigeria has established a framework for coordinating humanitarian assistance to IDPs, which includes guidelines for the protection of vulnerable groups, such as women and children. This framework outlines the roles and responsibilities of government agencies, humanitarian organizations, and other stakeholders in providing assistance and support to IDPs.

 

Fig.2

Fig.2

 

Rights of Internally Displaced Persons

Regardless of how wide the legislation and laws for the protection of the rights of Internally Displaced persons are, there are certain fundamental rights which encompasses a broad spectrum of rights, these are;

 

  1. Right to Safety and Security:
    • The United Nations Guiding Principles on Internal Displacement (UNGP) outlines the right of IDPs to protection and security during displacement. It emphasizes the responsibility of the government to ensure the safety of all displaced persons, including women and children.
    • The Nigerian Constitution, particularly Chapter IV, Section 33, guarantees the right to life and security of all citizens, including IDPs.
  1. Right to Non-Discrimination:
    • The UNGP prohibits discrimination against IDPs on the basis of gender, age, ethnicity, or any other grounds. It emphasizes the need for equal treatment and non-discrimination in the provision of assistance and protection.
    • The Nigerian Constitution, specifically Chapter IV, Section 42, prohibits discrimination on the basis of sex, religion, ethnic group, or social origin. This provision applies to all citizens, including IDPs.

 

  1. Right to Access to Basic Services:
    • The UNGP recognizes the right of IDPs to access basic services such as healthcare, education, and shelter. It calls for the provision of essential services to meet the needs of displaced persons.
    • The National Policy on Internally Displaced Persons in Nigeria provides a framework for the provision of basic services to IDPs, including women and children.

 

  1. Right to Freedom from Violence and Exploitation:
    • The Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) both emphasize the right of children and women to be protected from violence, exploitation, and abuse.
    • The Violence Against Persons (Prohibition) Act 2015 in Nigeria criminalizes various forms of violence, including domestic violence, sexual violence, and harmful traditional practices. This law provides protection for women and children, including those who are internally displaced.
  1. Right to Dignity and Respect:
    • The UNGP recognizes the right of IDPs to be treated with dignity and respect, regardless of their displacement status. It emphasizes the importance of upholding the human rights and dignity of all displaced persons.
    • The National Policy on Internally Displaced Persons in Nigeria emphasizes the need to respect the rights and dignity of IDPs, including women and children, in all aspects of their displacement.

 

Recommendation and Conclusion

In light of these issues, it is imperative for the Nigerian government, as well as international organizations and civil society groups, to take immediate action to protect the rights of internally displaced women and children in Northern Nigeria, through the implementing of adequate security measures within IDP camps, providing psychosocial support and assistance to survivors of violence, and addressing the root causes of displacement and conflict in the region.

We also need to revamp the security approach to take account of convergence between criminals and the present day terror gangs. The financing of terror groups or Non state armed groups or bandits through direct or laundered proceeds of such crimes like kidnapping, trafficking, cattle rustling drugs and counterfeiting signifies the need for enforcement and security agencies to adopt integrated or collaborative investigation instead of working in silos and in segmented patchworks.

Finally, efforts should be made to empower internally displaced women by ensuring their meaningful participation in decision-making processes and by addressing the structural inequalities that contribute to their marginalization. This may involve providing access to education and vocational training, promoting economic opportunities, and challenging harmful gender norms and stereotypes within the camps.

 

 


NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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A Review on the US Foreign Extortion Prevention Act 2023: Its effects on the Anti-Corruption War in Nigeria by Queenetta Bassey, Esq.

A Review on the US Foreign Extortion Prevention Act 2023: Its effects on the Anti-Corruption War in Nigeria by Queenetta Bassey, Esq.

Abstract:

This review examines the US Foreign Extortion Prevention Act (FEPA) Act 2023 and its potential impact on the anti-corruption war in Nigeria. The FEPA Act aims to combat corruption and promote transparency in international business transactions. This review analyses the key provisions of the act, its relevance to Nigeria, and the potential implications for the country’s anti-corruption efforts. Additionally, it explores the importance of international cooperation in the fight against corruption and highlights the role of the Nigerian government in enforcing anti-corruption measures. The review concludes by emphasizing the need for a strong political will, robust institutions, and a functioning judiciary to effectively combat corruption in Nigeria.

 

  1. Introduction:

Corruption has long been a pervasive issue in Nigeria, hindering economic growth, undermining public trust, and impeding development. The US Foreign Extortion Prevention Act (FEPA) Act 2023 presents a significant opportunity to strengthen the on-going anti-corruption war in Nigeria. This review critically examines the provisions of the FEPA Act, its relevance to Nigeria, and the potential impact on the country’s anti-corruption efforts.

 

  1. Overview of the FEPA Act 2023:

The FEPA Act criminalizes foreign corruption, prohibiting foreign individuals and entities from engaging in corrupt practices to gain an unfair advantage in international business dealings. The FEPA Act also establishes stringent reporting requirements for companies operating in the United States. It mandates that companies must implement robust anti-corruption compliance programs and report any suspected violations to the US Department of Justice. This provision is crucial as it encourages multinational corporations operating in the country to adopt stricter anti-corruption measures.

 

Furthermore the FEPA Act empowers the US government to impose severe penalties on individuals and companies found guilty of foreign corruption. Unlike previous US anti-corruption laws that only criminalize and punish corrupt US officials who are involved in corrupt practices, the FEPA Act provides further deterrence by punishing foreign persons who offer bribes and are involved in other corrupt practices with US officials, these penalties include hefty fines, imprisonment, and even exclusion from participating in US government contracts. Such stringent measures serve as a deterrent to corrupt practices by foreign persons.

 

  1. Relevance to Nigeria’s Anti-Corruption War:

Nigeria has made significant efforts to combat corruption, including the enactment of legislations such as the Economic and Financial Crimes Commission (EFCC) Act 2004 and the Corrupt Practices and Other Related Offences Act 2000. The FEPA Act complements these existing legislations by providing an additional legal framework to address foreign corruption and promote transparency in international business transactions. It encourages multinational corporations operating in Nigeria to adopt stricter anti-corruption measures, thereby enhancing the effectiveness of Nigeria’s anti-corruption efforts.

 

  1. Implications for Nigeria:

The FEPA Act empowers the US government to impose severe penalties on individuals and companies found guilty of foreign corruption, including hefty fines, imprisonment, and exclusion from US government contracts. These penalties serve as a deterrent to corrupt practices and can significantly impact the anti-corruption war in Nigeria. The Act also fosters international cooperation by requiring the US government to collaborate with foreign governments, including Nigeria, in investigating and prosecuting cases of foreign corruption. This provision opens up avenues for knowledge sharing, capacity building, and joint efforts in combating corruption.

 

  1. Enforcing Anti-Corruption Measures in Nigeria:

While the FEPA Act presents an opportunity for Nigeria to strengthen its anti-corruption war, its effectiveness depends on the commitment and willingness of the Nigerian government to enforce anti-corruption measures. These include building strong institutions, enhancing the capacity of anti-corruption agencies, and ensuring an independent and functioning judiciary. The Nigerian government must demonstrate a strong political will to combat corruption and create an enabling environment for the effective co- implementation of the FEPA Act.

 

  1. Conclusion:

The US FEPA Act 2023 offers significant aid for the anti-corruption war in Nigeria. By criminalizing foreign corruption, imposing stringent reporting requirements, and encouraging international cooperation, this Act has the potential to enhance Nigeria’s anti-corruption efforts. However, its true impact will depend on the Nigerian government’s commitment to enforcing anti-corruption measures, building robust institutions, and ensuring a functioning judiciary.

 

The impact of the FEPA Act on the anti-corruption war in Nigeria is likely to be substantial, as it sends a clear message that corrupt practices will no longer be tolerated, regardless of the jurisdiction in which they occur. Effective execution of this Act will serve as a wake-up call for Nigerian officials and businesses, urging them to adopt more transparent and ethical practices in all their international business dealings.

 

 

 


 

NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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UNCAC 10th Session of the Conference of State Parties Bolsters Universal Action on Whistleblower Protection.

UNCAC 10th Session of the Conference of State Parties Bolsters Universal Action on Whistleblower Protection.

By Prof. Deji Adekunle, SAN

Research Lead

Juritrust Centre for Socio Legal Research and Documentation

 

One of the main outcomes of the 10th Session of the Conference of State Parties of the UN Convention Against Corruption is a Resolution CAC/COSP/2023/Rev.1 calling for increased protection of reporting persons (whistle blowers) and their relatives. Whistle blower protection, what it means and how to go about it in a legal system present daunting challenges especially in legal traditions steeped in official secrecy, confidentiality and employee fidelity.  Despite derogations in these hallowed concepts in favour of exposure of illegality or crime, drawing the line in many cases can be problematic. For example should whistle blowers be protected from retaliation or should they be rewarded or incentivised; what difference does it make if the whistle blower is an accessory or conspirator who fell out with his colleagues or perhaps acted in reaction to his being cheated in the distribution of the loot? Should good faith or motives matter or is it just a question of results.

 

Whistle-blowing is the disclosure of information about perceived wrongdoing in an organisation, or the risk thereof, to individuals or entities believed to be able to effect action. Such wrongdoing could be a violation of a law or regulation, a miscarriage of justice, gross waste of public funds or gross mismanagement. It could be deployed as an early warning tool to avert possible risks by necessary corrective action or as a valuable clue to the unravelling of complex and secretive crimes like corrupt enrichment. Nigerian law has not really kept pace with the UNCAC provisions particularly Article 33 which requires that States parties consider incorporating into their domestic legal systems appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning an offence of corruption. Some of the salient aspects of the Resolution are examined next

 

Blowing the Whistle or Reporting a wrong

The term “whistle blower” is avoided by the Resolution instead it employs the word that in the ordinary sense captures what whistle blowing or whistle blower entail and that is simply reporting a wrong. All through the Resolution the verb “report”, and the noun “reporter” are preferred by the Resolution. The term “reporter” however is not used in the same sense as a news reporter Many see nothing wrong with the term “whistle blower” but in climes like Nigeria where reporting wrongs has become the exception rather than the norm the suggestion of affinity between a whistle blower and a meddlesome snitch should best be avoided. To blow the whistle on corruption is simply to report wrongdoing and while employees or insiders in an organisation are more vulnerable to retaliatory measures there is nothing in the term that restricts it to insiders exclusively.

 

Protection of Reporter and Relatives Against Unjustified Treatment

In urging states to continue to have regard to the application of Article 33 and to continue to develop appropriate measures to fully and effectively provide protection against unjustified treatment for all persons (and their relatives) who, on reasonable grounds, expose or report corruption and related offences to competent authorities the COSP has clarified that protection is not merely against civil or criminal proceedings but against unfairness or injustice. There are many ways in which a reporter can suffer injustice without necessarily being proceeded against in civil or criminal trial. Punitive postings, exclusion from privileges or perquisites, denial of promotion or benefits, withdrawing or limiting the reporters job schedule to the point of redundancy are examples of administrative injustices that can be meted on the whistle blower. Nigeria clearly needs to improve on the current legislative framework for the protection of whistle blowers.

 

Whistleblower Protection For Public officers under the Freedom of Information Act 2011

The existing framework is quite inadequate as it is primarily concerned with limited protection in favour of public officers who disclose information pursuant to the Freedom of information Act (FOIA) or protection against criminal proceedings where information is with a view to exposing corruption. (section 27 FOIA). The FOIA however does not outline a procedure or channel for disclosure of information neither does it prescribe redress or consequences where the whistle-blower is victimised or subjected to unjust treatment. Despite the resolution of some of these cases in favour of the whistle blower, the lack of a formal mechanism for redress was the source of delay and hardship.

 

The COSP Resolution touches on the importance of institutional mechanisms for the safe reporting of wrongs and an equally safe and effective redress mechanism. It urges state parties to increase public awareness of means for reporting instances of corruption, including by disseminating information regarding the rights and responsibilities of reporting persons in accordance with domestic legislation. States are also enjoined to establish and strengthen confidential complaint systems and protected internal reporting systems that are accessible, diversified and inclusive to facilitate timely reporting of corruption and to ensure the confidentiality of the reporting persons’ identities and personal information, including, where appropriate, allowing for anonymous reporting, and utilize innovative and digital technology in these efforts, with due regard for data protection and privacy rights.

One of the greatest fears of informers or reporters is the possibility that the those who are charged to uphold the law will not only reveal their identities to suspects but the informer may quite strangely become the suspect in a bizarre display of impunity. It is of course possible as happens in some cases that the informer is also an accomplice. However this does not make evidence or intelligence from such sources valueless; on the contrary it is this kind of evidence that has sent many kingpins of fraud, extortion or racketeering ring to jail. Safe secure and confidential channels of communication are therefore important prerequisites for a Whistle blower Protection Law.

 

The Whistle-blower Policy

Some of these conditions are captured in the Whistle-blower policy developed in 2016 by the Federal Government through the Ministry of Finance. The policy outlines a 2.5% – 5% reward band incentive for a person who discloses information bordering on violation of financial regulations, mismanagement of public funds and assets, financial malpractice or fraud and theft that is deemed to be in the interest of the public that directly leads to the voluntary return of stolen or concealed public funds or assets. The the major underpinnings of this policy are that:

    • The actual recovery must also be on account of the information provided by the whistle blower;
    • Information must be provided through anyone of three secure channels that guarantees anonymity – the portal, via email, telephone.
    • Any Stakeholder who whistle blows in public-spirit and in good faith will be protected, regardless of whether or not the issue raised is upheld against any Party.
    • Where reasonable grounds exist from which it can be inferred that an informer has been victimized, the onus is on the Party against whom the complaint of adverse treatment has been made to show that the actions complained of were not taken in retaliation for the disclosure.
    • Where a prima facie case established that a Whistle blower has suffered adverse treatment (harassment, intimidation or victimization) for sharing his\her concerns with the Ministry, a further investigation may be instituted and disciplinary action may be taken against the perpetrator in accordance with the public service rules/other extant rules and a restitution shall be made to the Whistle blower for any loss suffered.

 

This policy when read together with the opaque and inchoate provisions of section 27 of the FOIA, offers prospects for a progressive leap forward in the institutionalisation of whistle blower protection mechanisms in the public sector. Little has however been heard of it in recent times; the portal itself is suspect as it may have been hacked and labelled “unsafe.” Besides it is an inadequate basis for a legally binding obligation. Had the policy been sustained it would at least have led to the development of institutional capacity in the public sector and the design of effective procedures pending when these are eventually enacted as law.

 

 


NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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CONFISCATION OF PROCEEDS OF CRIME UNDER THE PROCEEDS OF CRIME ACT 2022 (POCA)      By Mrs Adaobi Nwosu-Okonta Esq

CONFISCATION OF PROCEEDS OF CRIME UNDER THE PROCEEDS OF CRIME ACT 2022 (POCA) By Mrs Adaobi Nwosu-Okonta Esq

Introduction

The Proceeds of Crime (Recovery and Management) Act (POCA) was passed into law in Nigeria in 2022. The Act was enacted to make comprehensive provisions for the seizure, confiscation, forfeiture, and management of properties reasonably suspected to have been derived from unlawful activities. The enactment of POCA was well received in view of the fact that corruption is a huge problem in the Nigerian public sector. The Act has provisions that target the receipt and management of proceeds of crimes including stolen public funds which may have been stashed in offshore banks or used to acquire assets in foreign countries.

POCA provides for non-conviction based recovery and conviction based recovery of the proceeds of crime. In conviction based recovery, an order of confiscation is made by the court only if the defendant has been convicted of the crime. Confiscation is defined in section 82 of POCA to mean “the permanent deprivation of funds or other assets by order of a competent authority or a Court”. The recovery of proceeds of crime is important for the following reasons: to compensate the victim of the crime, to prevent the proceeds from being employed to commit further crimes and to deter others from committing the same crime.

In the News

Recently, a British court in the United Kingdom issued an order directing Mr James Ibori, a former Governor of Delta State, Nigeria to immediately pay 101.5 million pounds or face an eight-year jail sentence. The confiscation order of the court directing Ibori to pay 101.5 million pounds was made pursuant to the conviction of Ibori in a British court in 2012. While facing trial before the British court, Ibori pleaded guilty to money laundering and related offences of fraud to the tune of 50 million pounds which he committed during his tenure as the Governor of Delta State. He was sentenced to 13 years of imprisonment and after serving the minimum term of imprisonment, he was released from jail. In the confiscation proceedings which were held years after his release from jail, the Judge formally declared that Ibori had benefited from criminal conduct in the sum of 101.5 million pounds and made an order for Ibori to pay that amount.In response to the confiscation order, Ibori stated that he would file an appeal and he also raised issues of his properties being the subject of a restraint order and that his assets are below the amount of the confiscation order. Although Ibori’s case was tried in a British court and the court’s orders were made under the United Kingdom’s Proceeds of Crime Act 2002, the issues raised in his case are still relevant to a discussion on the Nigeria Proceeds of Crime Act, 2022.

Implementation of a Confiscation Order

Section 45 (1) of POCA provides that the Court may make a confiscation order requiring a person to pay to the relevant organisation for deposit into the designated account, an amount equal to the total proceeds of a person’s criminal activities. As seen in Ibori’s case, certain issues may arise from the implementation of a confiscation order. These sorts of issues will be outlined below with a note on how Nigeria POCA addresses those issues.

  1. Issue of how the assets of the defendant are ascertained

In the investigation and seizure of assets pursuant to restraint or confiscation orders, there are cases where the assets and properties of other persons who are not parties to the case are lumped together with those of the defendant. The question then arises as to the proper way of ascertaining that certain assets are owned by the defendant and not third parties.

Section 48 (1) of POCA lists properties of the defendant which may be realized to satisfy a confiscation order.  They are-

  1. Property held by the defendant.
  2. Property held by a person to whom that defendant has directly or indirectly made any affected gift.
  3. Property that is subject to the effective control of the defendant.

Section 50 (3) defines “affected gift” to mean any gift made by the convicted person concerned, where it was a gift of property received by that convicted person in connection with an offence committed or any part which directly or indirectly represented in that convicted person’s hands property received by him in connection with an offence committed by him or any other person.The relevant organisations are expected to follow the provisions of POCA in identifying properties that are realizable for the satisfaction of court orders against the defendant. Where there are third-party claims to such properties, it is expected that those third parties apply to the court to prove their ownership of those properties as well as to prove that the properties are not proceeds of criminal activity.

2. Issue of the defendant’s assets being subject to a restraint order

A confiscation order is made after the defendant is convicted of the crime. While the trial is ongoing, restraint orders are usually made on the assets of the defendant to prevent the defendant from disposing of those assets before the conclusion of the criminal case.  Restraint orders do not automatically expire when a confiscation order is made and remain in force until the confiscation order is satisfied. The issue that arises is the inability of the defendant to satisfy the confiscation order because he cannot sell his assets due to the existence of a restraint order on those assets.

Section 36 (5) (a) of POCA provides that the court making a restraint order shall, at the same time, make an order authorising the relevant organisation or an authorised person acting on its behalf, to take custody or control of any property specified in the order. Under section 33 (c) and (e), the relevant organization is expected to implement confiscation proceedings against a convicted person and the realisable properties are supposed to be preserved and available to satisfy a confiscation order. From the above provisions, it is clear that under POCA, the same organization is tasked with the implementation of restraint and confiscation orders. Where a defendant is unable to satisfy a confiscation order due to the presence of a restraint order on his assets, it is easy for the relevant organization to dispose of the same assets to satisfy the confiscation order since it has custody and control of the assets.

Under the United Kingdom’s POCA, different persons implement restraint and confiscation orders. A management receiver protects properties that are subject to a restraint order while an enforcement receiver disposes properties for the purpose of satisfying a confiscation order. Where a defendant is unable to satisfy a confiscation order within the time specified, it is expected that the enforcement receiver will liaise with the management receiver for the disposal of the defendant’s properties which are subject to the restraint order.

3. Issue of the value of the confiscation order being greater than the value of the assets that are subject to a restraint order

There are instances where the value of the confiscation order is different from either the value of the proceeds of the crime committed or the value of the properties that are subject to a restraint order. This variation of the confiscation order is dependent on the law of the jurisdiction where the case is tried. In Ibori’s case, for example, he was convicted of offences to the tune of 50 million pounds while his confiscation order was set at 101.5 million pounds. This is because, under United Kingdom’s POCA, the confiscation order is calculated based on what the defendant has benefitted from the crime. The calculation therefore goes beyond the financial crime amount but includes the resulting gain from the defendant employing the wealth, resources and property gotten from the commission of the crime.

Under Nigeria’s POCA, section 45 (5) puts an upper limit on the amount the court can ask the defendant to pay in the confiscation order. Section 45 (5) provides that the amount that the court may order a convicted person to pay to the relevant organisation shall not exceed-

(a) the value of the convicted person’s proceeds from the offences or criminal activity, as determined by the court, in accordance with the provisions of the Act; or

(b) an amount, which in the Court’s opinion may be realised, if the Court is satisfied that the amount which might be realised as contemplated under this Act is less than the value referred to in paragraph (a) of this subsection.

From the provision of Nigeria’s POCA, it is not contemplated that the amount in the confiscation order may be greater than the amount of funds derived from the crime. Instead, the court may assess the amount on the confiscation order to be lesser.In both the Nigeria and United Kingdom’s POCA, where the value of the properties of the defendant that are subject to a restraint order is less than the value of the confiscation order, the defendant is expected to make up the balance that may remain on the confiscation order after selling his assets. However, in both jurisdictions, the court also has the discretion to vary the confiscation order to a lesser amount than the amount of the proceeds derived from the criminal activity.

Conclusion

The Nigeria Proceeds of Crime Act 2022 makes extensive provisions for the recovery of proceeds of crime. This is an important law in Nigeria which ought to help in curbing corrupt practices and ensuring that looted funds are recovered and returned to the rightful owners which is the public. The Act makes extensive provisions covering the making of confiscation orders by the court and the implementation of those orders. Some issues that may arise in the implementation of confiscation orders have been highlighted and discussed above.

 

NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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