HB 872: Proceeds of Crime Bill, 2016

Bill Analysis:

Short Title 

Proceeds Of Crime Bill

Purpose Of The Bill 

To make comprehensive provisions for the confiscation, forfeiture and management of properties derived from unlawful activities

The objectives of the Bill are

• To provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime or benefits derived from unlawful activities;
• To deprive a person of the proceeds of an unlawful activity, instrumentalities of an offence and any other benefit derived from an offence committed within or outside Nigeria;
• To prevent the re-investment of proceeds of unlawful activity in the furtherance of criminal enterprise;
• To harmonize and consolidate existing legislative provisions on the recovery of proceeds of crime 
• To make comprehensive provisions for the restraint, seizure, confiscation and forfeiture of property derived from unlawful activities and any instrumentalities used or intended to be use in the commission of such unlawful activities.

Salient Issues on the Bill

After careful perusal, it is apparent that the Bill seeks to do the following:

1.    To Establish Proceeds of Crime Recovery and Management Agency (the “Agency”)

The Bill seeks to establish the Proceeds of Crimes Recovery and Management Agency (hereinafter known as “the Agency”), which shall have the power to implement, enforce and duly administer the provisions of this Bill (when it becomes a law).  According to Clause 97, the Agency shall have the power to “co-ordinate and enforce all other laws on the investigation, identification, tracing and recovery of the proceeds of unlawful activities”, which is similar to Section 7(2) of the EFCC Act. This constitutes a clear duplication of roles.

Clause 101 of the Bill provides for 17 functions of the Agency, which are similar to the functions of the EFCC as provided under Section 6 of the EFCC Act. The functions under listed in the Bill are a compendium of what the EFCC, ICPC and other relevant security agencies of government working on eliminating criminal activities and managing their proceeds, are empowered to do. Hence, the need to establish another agency to add to the number is inapt and unnecessary.

The Agency under Clause 98 of the Bill shall have a part-time Governing Board made up of a part-time Chairman and other members, who shall be representatives not below the rank of a Director from government bodies like the Minister of Finance, Attorney General of the Federation, Accountant General of the Federation, EFCC, CBN, Nigerian Police, NDLEA, etc. Given that these agencies from where these board members will be extracted are agencies collectively performing the functions that the Proceeds of Crime Agency shall perform (when established), the arrangement amounts to a duplication of functions and clarifies why an additional agency is not needed.

2.    To provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime or benefits derived from unlawful activities:

A legal framework already exists in Nigeria, even though the effectiveness in relation to the management of proceeds of crime may be questionable.  Several laws provide for the investigation and prosecution of crimes, offences and other unlawful activities, as well as management of their proceeds such as:
a)    Economic and Financial Crimes Commission (EFCC) Act; 
b)    Criminal Procedure Act;
c)    Currency Conversion (freezing orders) Act; and 
d)    Corrupt Practices and Other Related Offences (ICPC) Act; amongst others. 

Clause 41 & 101(m) of the Bill provide for collaboration with international government in the recovery of funds and assets. This role has been covered in the Executive Bill recently passed by the Senate – Mutual Assistance in Criminal Matters Bill, which seeks to facilitate and obtain mutual assistance in criminal matters between Nigeria and other countries.

In addition, the EFCC Act under Section 6(j)(ii) is empowered to collaborate with government agencies, both local and international in the matters concerning the movement of proceeds or properties derived from the commission of unlawful activities. This amounts to  duplication.

3.    Deprive a person of the proceeds of unlawful activity.
The Bill seeks to prevent a person found guilty of a crime from the use of proceeds of the crime. To achieve this objective, the Agency to be established under this Bill, shall have the power to apply to the court for an order of forfeiture, restraint, seizure or freezing of accounts. This EFCC has the statutory power under Sections 20, 26(3) and 34 of the EFCC Act to carry out this function. Where an agency in existence is carrying out this function, there is no need to duplicate it. 

4.    Establish the Confiscated and Forfeited Properties Account:
Clause 146 of the Bill seeks to establish a special designated account within the Central Bank for lodging all recovered proceeds of crime; and shall be managed by the Accountant General of the Federation. This is a welcome development, as it will improve accountability with respect to recovered funds. A situation where the acting EFCC Chairman could not give a clear figure of how much was recovered by the EFCC for a specified period of time will be averted. 

In addition, it will improve transparency since the money will be lodged at the CBN under the supervision of the Account General of the Federation; and the Minister of Finance, with the approval of the President, shall have the power to disburse the funds for reasons provided under Clause 148 of the Bill. The three agencies will collaborate to monitor the flow of money. It shall not be left to one agency alone. 

Furthermore, this account can be a repository of funds for existing relevant agencies like the EFCC, NDLEA and others listed under Clause 147 of the Bill. In effect, more agencies will be able to monitor the account and keep each other in check.

5.    To Harmonize and Consolidate Existing Legislative Provisions:
The Bill seeks to amend certain provisions of the NDLEA Act, NAPTIP Act, EFCC Act and ICPC Act. While amendments to these legislative provisions listed under Clause 162 of the Bill, may be needed to increase the efficiency of the established government agencies, there is still no clarity on the need to establish an additional entity. However the amendments seeking to strip the existing agencies of their powers, in other to provide the basis for establishing the Proceeds of Crime Agency should be are unwarranted and should be deleted from the Bill. The existing government agencies can be strengthened to be more effective and any gaps in the provisions of the Acts establishing them can be corrected with an amendment.

The other objectives, which include - to prevent reinvestment of proceeds of unlawful activity; to make comprehensive provisions for the confiscation, restraint and forfeiture of property derived from unlawful activities are already objectives of the existing agencies like the EFCC, Customs, NDLEA, etc. Establishment of another government agency to do the same shall not make any difference. 

 Bill Structure

In terms of the structure of the Bill, the provisions are structured in a cohesive and orderly form making it the Bill easy to comprehend; however, some of the Clauses are similar and repetitious that they could have been consolidated rather than stand separately. For instance, Clause 10(2)(c), which provides for the custody of the immovable property without the consent of the court is similar to Clause 10(5). In addition Clause 13(3), which provides for a person served a notice of a forfeiture order is a repetition of Clause 5(2). Clause 30(1) and (2) provide for the same matter as well.

 Conclusion

The Bill seeks to establish the Proceeds of Crimes Recovery and Management Agency, Confiscated and Forfeited Properties Account, as well amend provisions of existing legislations. The contents of the Bill are quite comprehensive and center on effective management of proceeds of crime; however, establishing an additional agencies to all the other “crime-fighting” agencies in existence in Nigeria not a step in the right direction.

The NDLEA, EFCC, ICPC, Customs Service, Police and several other relevant security agencies are enough to tackle crime and related matters, but they lack the strength and efficiency to do so. The solution should not be an additional agency, rather a strengthening exercise by the government with the assistance of the private sector, Civil Society, international partners and other stakeholders. Amendment to certain provisions of the legislations establishing them is one way to strengthen the existing agencies. The lacuna in the other legislations that are provided for extensively under the Bill can be inserted through the amendment. 

Establishment of a separate account within the CBN to house recovered proceeds of crime is a welcome development. It is a means to ensure accuracy of the exact amount or funds recovered. As the Bill provides under Clause 32, it will be profitable to make the special account interest generating, so that the length of time spent on investigations and trials will not affect the value of the money.

It is not the dearth of law that makes it difficult to fight crimes; it is the implementation. It is baseless creating a new agency to duplicate the role of existing agencies; rather strengthening the existing agencies will make a positive impact. While it is clear that the establishment of the special account at the Central Bank shall increase efficiency, the establishment of additional agency shall not.