HB 326: Economic and Financial Crimes Commission Act (Amendment) Bill, 2015

Download Bill Bill Analysis Download Bill Analysis Infograph
infograph

Sponsor:

Hon. Bede Eke Uchenna

State: IMO
Party: Peoples Democratic Party

Bill Status: Passed!

  • First Reading: 16/12/2015
  • Second Reading: 15/03/2017
  • Committee Referred To: Financial Crimes
  • Consolidated with:Consolidated with HB 393,326,617 and HB 871
  • Date Reported out of Committee:
  • Third Reading:15/05/2019
  • Reconsidered and Passed:

Bill Analysis:

SHORT TITLE

Economic and Financial Crimes Commission Act (Amendment) Bill, 2015 (HB 326)

OBJECTIVE OF THE BILL

The objectives of the Bill are:-

  • To provide quick recovery procedure for stolen asset;
  • To implement active pursuit of cases
  • To build capacity and improve trust and cooperation with foreign counterparts;
  • To ensure adequate funding of the Commission
  • To establish the EFCC Court  

NUMBER OF CLAUSES/PARTS

The Bill has 10 clauses, including citation.

IMPLICATIONS

The Bill has been consolidated along with EFCC Act (Amend.) Bill 2016 HB 393 sponsored by Hon Bassey Eko Ewa, EFCC Act (Amend.) Bill 2016 (HB 617) sponsored by Hon Adetutu Oladipupo, and EFCC Act (Amend.) Bill 2016 (HB 871) sponsored by Hon Kayode Oladele. 

If the Bill is passed into law: -

  • The Economic and Financial Crimes Commission (EFCC) Court will be established;
  • 0.1% of all contracts in any given year awarded by the Federal Government shall be credited to the Commission;
  • 0.1% of all Internally Generated Revenue (IGR) for any fiscal year shall be credited to the funds of the Commission;
  • The Financial Intelligence Unit (FIU) of the EFCC shall have access to all accounts and investigate any account without complying with Section 6(a) and (b) of the Evidence Act, which prevents a person from giving evidence of a fact which he is disentitled to prove by any provision of the law;
  • A financial expert drawn from the public or private sector, heading the FIU shall monitor cash transactions of ALL accounts in Nigeria.

GENERAL PROVISIONS OF THE BILL

1. Petitions to be submitted to the National Assembly

The proposed amendment to Section 3 of the Principal Act shall include adding new sub-sections (4) and (5). Sub-section (4) shall provide that petitions against the Chairman or any officer of the Commission from the public shall be submitted to the National Assembly. If found culpable, a simple majority vote of the Members of the National Assembly is required in considering the fate of the Chairman or the affected officer (Clause 2).

The proposed amendment under sub-section (5) shall provide that the National Assembly shall forward its recommendations to the President, and if the President objects to the removal of the Chairman or affected officer, he shall inform in writing to the National Assembly with reasons. The members however, may by a two-thirds majority veto the decision of the President’s decision

2. Amendment to Section 6 of the Act: -

Section 6 of the Principal Act shall be amended by inserting the following paragraphs (q) – (v), which include:

  • Adopt and implement comprehensive strategic policies to combat corruption;
  • Implement institutional reforms;
  • Device specialized systems or units with trained professionals and adequate resources;
  • Enable rapid tracing and freezing of stolen assets and multiple avenues for asset recovery including confiscation without conviction;
  • Facilitate international cooperation including the direct enforcement of foreign orders and granting legal assistance in the absence of bilateral agreement;
  • Supporting law enforcement efforts in pursuing kleptocracy cases;
  • Establish placement of mentorship and training programmes for foreign law enforcement agencies. (Clause 3)

3. Amendment to Section 12 of the Act: -

The proposed amendment to Section 12 of the Principal Act under Clause 3 provides that the Financial Investigation Unit (FIU) shall be headed by a Retired Assistant Inspector-General of Police and/or its equivalent in the Nigerian Military.

4. Amendment to Section 13 of the Act: -

The proposed amendment as provided under Clause 6 shall insert sub-sections (3) and (4) that list the responsibilities of the “Asset Confiscation and Recovery Unit” and powers of the “Financial Investigations Unit”

5. Amendment to Section 18 of the Act (Offences): -  

The proposed amendment to Section 18 as provided under Clause 7 of the Bill shall insert paragraph (c), (d) and (e). The paragraph (c) provides that all convicted persons shall serve an imprisonment of a term not less than 20 years and have their ill-gotten property or accounts confiscated by the government. Paragraph (d) provides that where an accused person accepts to refund the amount and willing to plea bargain, s/he shall be convicted for not more than 2 years. Paragraph (e) provides that any company found guilty of offences shall be blacklisted from doing business in Nigeria for 50 years.

6. Amendment to Section 35 of the Act (Funds of the Commission): -

The proposed amendment to Section 35 as provided under Clause 8 states that 0.1% of all contracts awarded by the Federal Government and 0.1% of Internally Generated Revenue (IGR) shall be credited to the funds of the Commission.

7. Establishment of the EFCC Court (the Court): -

Under Clause 9, the EFCC Court shall be established to handle cases of bribery, embezzlement, misappropriation or other diversion of property by a public official, who engages in abuse of functions, illicit enrichment etc.

No motion shall lie in any Court or Tribunal to stop proceedings on any matter properly filed at the EFCC Court. The Court shall dispense with any matter brought before it in 180 days.

Appeals from the Court shall lie before the Court of Appeal and the consideration of the appeal shall happen in 90 days (appeals from EFCC Court)

The Court shall have divisions in the 6 geo-political zones and the FCT

8. Constitution of the EFCC Court: -

The Court shall be duly constituted by 1 judge, a retired Permanent Secretary with cognate experience of not less than 15 years and a forensic financial expert with cognate experience of not less than 17 years

9. Jurisdiction of the EFCC Court: -

For the purposes of exercising any jurisdiction conferred upon it by this Bill (when signed into law), the EFCC Court shall have all the powers of the Federal High Court of a State. The National Assembly may confer additional powers to the EFCC Court to enable it perform effectively.

10. Powers of the Judge to Make Rules: -

Subject to any Act of the National Assembly, the judge of the EFCC Court may make rules for regulating the practice and procedure of the EFCC Court.

 

COMPARATIVE ANALYSIS OF THE ACT AND SOME AMENDMENT BILL(S)

EFCC ACT 2004

HB 871

HB 393

Section 3 provides for the tenure of office of the Chairman and members. A member may be removed by the President at any time if the President is satisfied that it is in the interest of the public. A member may resign by notice in writing addressed to the President

 

 

 

 

Clause 6 proposes to amend Section 3 of the Act deleting subsection (2) and inserting another subsection (2) which provides that a member of EFCC may be removed at any time by the President subject to the approval of 2/3 majority of the Senate

 

 

 

 

Clause 2 proposes amendment of Section 3 of the Act by inserting sub- sections (4) & (5). Sub section (4) provides that petitions against the Chairman or members of the EFCC shall be submitted to the NASS and by a simple majority vote consider the fate of the Chairman or member if found guilty.

Sub-section (5) provides that the president may object to the recommendation by NASS for removal of the Chairman or member in writing to the EFCC with reasons. However, the NASS may veto his decision by a 2/3 majority vote

Section 1 provides that EFCC shall be the designated Financial Intelligence Unit (FIU) in Nigeria, with the responsibility of coordinating the various institutions involved in the fight against money laundering

 

Clause 3 adds a new paragraph to Section 1 by establishing a unit to be called the Nigeria Financial Intelligence Unit (NFIU), which shall be the central authority in Nigeria for receiving, analyzing and disseminating financial information to law enforcement agencies

Clause 3 proposes an amendment to Section 12 by inserting that the Financial Intelligence Unit (FIU) shall be headed by a Retired Assistant Inspector-General of Police

 

 

 

EFCC Act 2004

HB 871

Section 2(1)(a)(ii) provides that a serving or retired member of any government security or law enforcement agency, not below the rank of Assistant-Commissioner of Police, possessing not less than 15 years cognate experience shall be Chairman

 

 

Clause 4 proposes an amendment to insert “…not below the rank of Deputy Commissioner of Police” to replace Assistant-Commissioner of Police. And insert two paragraphs –

(iii) a legal practitioner with 15 years experience;

(iv) a retired judge of a superior court of record

 

Section 6 describes and lists the functions of the Commission

 

 

 

Clause 7 proposes to add to Section 6 the following –

- Monitoring, supervision and regulating the activities of designated non-financial institutions to ensure compliance with anti-money laundering and combating the financing of terrorism

 

Section 7 provides for the Special powers of the Commission

 

 

Clause 8 proposes amending Section 7 by updating the listed Acts to the latest versions –

“(a) the Money Laundering (Prohibition) Act 2011 (as amended; 2004;2003 No 7; 1995 No. 13”

 

Section 14 provides for offences relating to financial malpractices

 

 

 

 

 

 

Clause 17 proposes to amend Section 14 by adding paragraph 14(4)(a)-(c)

  1. recovered money, or assets belonging to a State shall be returned to the State
  2. recovered property belonging to an individual or corporate body shall be returned to the individual
  3. where the owner of the asset or property is an unidentified victim, the money from the sale shall be transferred to the Consolidated Revenue Fund of the Federation

Section 26 provides for seizure of property

 

 

 

 

Clause 19 proposes amendment by inserting Section 26(2)(c) & (d) as follows

2(c) to provide that money recovered from a property seized shall be paid to a designated account;

2(d) for movable property, the Commission may by order of the Court cause the property to be sold at market value and keep the proceeds

 

Section 29 provides for obtaining interim forfeiture order from the Court where there is a prima facie evidence that the property is liable for forfeiture to the Federal Government

 

Clause 23 proposes to delete Section 29 and replace it with paragraphs that provide that unclaimed property or property voluntarily surrendered or property purchased with money reasonably suspected to be proceeds of crime shall be forfeited to the Federal Government of Nigeria

 

Section 34(1) provides for when the EFCC may authorize the freezing order on banks for accounts reasonably suspected to have money obtained through the commission of offence

 

 

 

Clause 24 proposes the deletion of Section 34(1) and replacing with a paragraph which provides that the Chairman or designated officer of the EFCC may by a written letter to a Bank Manager cause an account to be frozen and shall within 14 days apply to the Court ex-parte for an order to freeze the account. This can be done if the Commission is satisfied that the money in the account is made through the commission of the offence.

 

 

Section 39 provides for penalty for providing false information

S. 39(2)(d) provides for a fine not less than N100,000

S. 39(2)(c) provides for a fine not less than N10,000

Clause 26 proposes to alter Section 39(2)(d) and inserting “not less than N200,000”

& Clause 27 proposes to alter Section 39(2)(c) and inserting “not less that N100,000”

 

 

CONCLUDING ISSUES

The Bill seeks to establish an EFCC Court (“the Court”) that will have coordinate jurisdiction with the High Court of a State and no action in any Tribunal or Court can stop a case from being tried at the EFCC Court. This means that no court order or injunction from any court of competent jurisdiction can halt a case at the EFCC Court. The Bill also provides that the Court shall consist of 3 persons – a Judge, a forensic expert and a retired Permanent Secretary. There are very serious issues here; an EFCC court not being constituted in such a manner as to guarantee justice. The proposal seeks to create a tribunal, rather than a court of justice. The concern is that of an EFCC court being set up that includes persons untrained in the knowledge of law.

Clause 19 (HB 871), which has been consolidated along with this Bill, provides that the proceeds realized from the sale of seized property shall be kept in the custody of the EFCC or a designated account; while Clause 17 provides that proceeds from the sale of property of unidentified owners would go to the Consolidated Revenue Fund. There is no explanation as to why there shall be numerous accounts for paying in recovered funds. In addition, this may result in confusion as to the total amount that the Commission recovers within a period of time and the use to which the funds are put.

On removal of a Chairman or member, the two Bills provide for two slightly different processes. While HB 871 provides that the removal is subject to approval of 2/3 majority of the Senate, HB 393 provides for a 2/3 majority of the National Assembly. This discrepancy needs to be clarified in the consolidated version.

The confidentiality in the banker-client relationship could be breached with the appointed head of the Financial Intelligence Unit (FIU) having the power to monitor all cash transactions in Nigeria. There are several clauses in the Bill that raise serious human rights abuse concerns especially imparting on the rights to privacy, fair trial and indeed issues of arbitrary powers given to the Commission and its FIU.

Consideration of the Bill by lawmakers must balance the public interest intended to be served by the Bill and the possibility that it could be an instrument for arbitrary exercise of powers and human rights abuse.

Infographic:

placbillstrack 2017