What to do with recovered loot

CORRUPTION is the greatest tragedy and main obstacle to the stability and development of Nigeria. The many faces of corruption and the various ways it affects and impacts on the socio-economic and political systems of the country are too glaring and have been well documented and need not be regurgitated here.

Annual cross-border flow of proceeds of crime is estimated at US$1-1.6 trillion. Half of this is from Less Developed or Developing Countries (LDCS), out of which $20-40 billion is from bribes to public officials in LDCS. Nigeria’s share is the highest due to the prevalence of corruption. In 2014, the African Union High level Panel on Illicit Financial Flows estimated that about $60 billion has been illegally transferred out of Africa - $40 billion from Nigeria. President Muhammadu Buhari, in his speech at the 70th United Nations General Assembly in 2015 stated that $150 billion was looted from the government treasury in Nigeria between 1995 and 2015. Other estimates suggest that $182 billion was stolen from Nigeria and stashed offshore between 2000 and 2009. Investigations into arms procurement for the military under the Office of National Security Adviser revealed that $2.1 billion was shared among politicians leaving the citizens at the mercy of the Boko Haram insurgency. In all, more than $500 billion has been lost to graft in Nigeria since independence.

The greatest expectation on President Buhari was and still remains in the ability of his government to stem the tide of the monster called ‘corruption’. Consequently, asset recovery is a priority on the anti-corruption agenda of the Buhari administration. This has been appropriately articulated in the National Anti-corruption Strategy 2017. Illicitly obtained funds are usually invested abroad either because domestic currency or economy is unstable; to avoid detection or simply to place the money outside the reach of a national government’s jurisdiction. Until recently, financial institutions in financial centres were accepting and would accept stolen money without question. This has now changed relatively due to the anti-money laundering standards being enforced the world over.

The principles behind the recovery of assets include the common understanding that it is an economic intervention strategy with potentials of bringing back what have been stolen or misappropriated, thus, increasing the revenue profile of the government; to that extent, it serves as a restitution to the society/citizens who have been ‘victimized’ by acts of corruption. Asset recovery also aims to deny criminals their illegal gain and to prevent them from misusing it for organized crime purposes. But most importantly, it is an anti-corruption strategy with potential of removing negative role models from society and rebutting the notion that crime pays.

The international response

The international community and governments have developed various tools for recovering the proceeds of crime. However, in spite of domestic legislation, which allows confiscation and forfeiture of the proceeds of crime, globalisation and technological advancement have allowed perpetrators of crime to continue to launder the illicit proceeds of their crimes. The subject of asset recovery has become one of the major themes in discourses on development funding, due in part to the enormous amount of resources that are lost annually by developing countries to corruption. Over the last couple of decades, the legal and criminological approach to dealing with criminal activities like drug trafficking, corruption, money laundering and terrorist financing have undergone a paradigm shift from the utilitarian and the traditional “just deserts” model of punishment to a “dispossession” model which aims at taking the profit out of crime. Recovering the proceeds of crime takes the profit out of the crime because it deprives perpetrators of their illicit gains. Asset forfeiture and asset recovery have thus, become some of the more innovative tools to combat economic and financial crimes.

The United Nations Convention against Corruption (UNCAC) is the ground breaking convention on asset recovery. The UNCAC explicitly identifies asset recovery as its fundamental principle. It enjoins States Parties to establish comprehensive domestic regulatory and supervisory regimes to prevent money laundering. Countries that have ratified the UNCAC are required to criminalize the offence of bribery, embezzlement, misappropriation or other diversion of property by a public official and, laundering of the proceeds of crime; however, criminalisation of illicit enrichment, is left to the discretion of the States. Nevertheless, Article 21 of the UNCAC encourages States Parties to put in place measures that would criminalize illicit enrichment, which is defined as “asignificantincreaseintheassetsofa publicofficialthatheorshecannotrea- sonablyexplaininrelationtohisorherlawfulincome”. Applying the principles of Article 21 means that a significant increase in the assets of a public servant raises a primafacie presumption that the public official concerned benefited from illicit enrichment. This presumption can be rebutted by furnishing facts which reasonably explain the legal source of the assets. While several jurisdictions have successfully enacted and enforced illicit enrichment, others consider it inconsistent with their constitutions and fundamental principles of due process.

The greatest innovation of the Convention is contained in chapter five. Asset recovery and the return of such assets to countries of origin is a fundamental principle of this Convention, and this chapter contains provisions such as prevention and detection of transfers of proceeds of crime; measures for direct recovery of property; mechanisms for recovery of property through international cooperation in confiscation; international cooperation for the purposes of confiscation; return and disposal of assets; the requirement for the establishment of financial intelligence unit; as well as bilateral and multilateral agreements and arrangements (Articles 51–59). Specifically, Article 51 states: ‘The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.’ And on matters of direct recovery of property, the Convention provides (Article 53) that

Shehu is a professor of Criminology, Nationalopenuniversity,abuja.