President Buhari |
To enhance its asset recovery options, Nigeria should develop its own
asset recovery framework that not only works with current international asset
recovery arrangements but extends beyond them when those arrangements do not
work. Enhancements the Nigerian Government should consider include:
Upgrading domestic criminal money laundering laws by increasing the penalties up to 25 years imprisonment.
Upgrading domestic criminal money laundering laws by increasing the penalties up to 25 years imprisonment.
Expand the physical
act of money laundering to include receiving, possessing, concealing, disposing
off, engaging in a transaction or exporting or importing the proceeds of crime
from Nigeria. Having a very wide framework that captures every conceivable act
of money laundering, expands the chances of prosecuting those involved and
recovering illegal assets.
Include recklessness
and negligence as mental elements in money laundering offences, as is the case
in Australia or reverse onus
provisions as with Hong Kong . Changing the
mental element of money laundering as recommended will make it easier for Nigeria to
prosecute professionals in that country and abroad who handle the proceeds of
crime including corruption. For too long professionals who have advised and
assisted criminals to launder money have evaded prosecution, as they have
argued that they did not know the money was the proceeds of a crime. Changing
the mental element to recklessness or negligence, means that professionals
including bankers should have known the origin of the funds, and should have
taken steps to find out the source.
Introduce
non-conviction based civil forfeiture laws in Nigeria for all serious offences
including illicit enrichment provisions (also known as unexplained wealth).
Introduce a criminal
offence for all politicians and public servants who have unexplained wealth
that they cannot explain, as is the case in Hong Kong .
Extend Nigeria ’s money laundering laws to include all
Nigerian citizens (with no exemptions for politicians); and all Nigerian
residents wherever they live; all Nigerian registered companies wherever they
operate and to all persons and companies who “cause a money laundering harm to Nigeria ”. The
latter provision would apply to any person or company that promotes a scheme or
who provides a service that is used to launder money from or to Nigeria . It
would apply to offshore promotors, bankers, property developers and managers etc
who earn huge amounts of money by handling the proceeds of crime, including
funds derived from corruption or who provide advice on how to conceal or move
illegal funds. Any person or company who receives, possesses, conceals or
transfers etc, money derived from corruption or other serious offence would
commit an offence against Nigerian law, regardless of where they live or their
nationality.
Develop multi-agency
task forces in Nigeria
combining the resources and powers of all agencies including the NFIU, EFCC,
NDLEA, Nigeria Customs and Federal and State taxation departments. The function
of the task forces would be to pursue money laundering relating to all crime,
and to recover the proceeds of crime. With illegally earned cash and assets it
is very difficult to proof that they are tainted. A multi-jurisdictional and
agency approach, increases the changes of establishing that funds were derived
from crime.
Ban any international
bank that refuses to cooperate with the Nigerian Government from operating in Nigeria .
Prevent any Nigerian Bank from having a corresponding bank arrangement with any international bank, that refuses to cooperate when it holds the proceeds of crime laundered fromNigeria .
Prevent any Nigerian Bank from having a corresponding bank arrangement with any international bank, that refuses to cooperate when it holds the proceeds of crime laundered from
If implemented the
above changes will strengthen Nigeria ’s
arsenal in combating corruption and major crimes domestically, bringing to task
those professionals who profit from laundering the proceeds of corruption and
serious crimes and recovering the proceeds of crime offshore. In a practical
sense, the above measures would operate as follows:
A request for mutual
legal assistance in criminal matters to a country to gather evidence of a
criminal offence and to recover the proceeds of crime should be drafted in the
widest possible terms. Many countries make the mistake of only seeking evidence
in relation to one crime type or one offence. From experience, a request should
seek evidence relating to as many major offences as possible including tax
evasion and money laundering. Money laundering should always be included where
funds are involved. As an act of money laundering would have been committed to
get illegal funds out of Nigeria .
And as all illegally earned income is taxable, tax evasion should be included.
This is reinforced by changes to international money laundering standards
making tax evasion a criminal offence of money laundering. Forming multi-agency
teams enables wide reaching multiple offence mutual assistance requests to be
submitted to a foreign country.
Any criminal
investigation should in addition to targeting the main offenders, also focus on
those persons offshore who have received the proceeds of crime or continue to
possess or control the proceeds of crime or who have assisted in the movement
of proceeds of crime. Warrants for their arrest should be grounded in Nigeria and
alerts raised with Interpol. Any request for assistance should include the
extradition of those people to Nigeria
as well. If the country in which those advisors reside, does not hand them up
for extradition, then Nigeria
needs to be patient and monitor them until they can be arrested when they visit
a country that is prepared to assist.
Once Governments,
organisations particularly international banks, and professional firms realise
that the Nigerian Government is targeting the facilitators of corruption and
money laundering, there will be a significant change in attitude towards
cooperating with Nigeria .
*Douglas is a
Director, Malkara Consulting (Australia
and Singapore )
No comments:
Post a Comment