A Bill, which will clip the wings of anti-graft agencies by establishing a new agency, is in the works, The Nation has learnt.
The bill is seeking to establish the Proceeds of Crimes Recovery and Management Agency (POCA), which will strip the Economic and Financial Crimes Commission (EFCC) and six other agencies of powers to seize assets or invoke the forfeiture clause. It has been sent to the President.
If signed into law, the bill will stop the EFCC and six other anti-corruption agencies from securing freezing orders on suspicious bank accounts under investigation.
The bill also empowers a court to give an order to allow a suspect to be paid “reasonable” living expenses from his or her restrained property.
The new bill says POCA’s powers supersede those of the EFCC and the six other agencies.
The other agencies, which are affected by the Proceeds of Crimes Bill, include Independent Corrupt Practices and Other Related Offences Commission (ICPC); National Drug Law Enforcement Agency (NDLEA); Nigerian Financial Intelligence Unit (NFIU); and National Agency for the Prohibition of Trafficking in Persons (NAPTIP); Code of Conduct Bureau (CCB) and the police.
All the agencies have lost the powers of recovery of foreign assets.
But President Muhammadu Buhari has stayed action on assent to the bill and demanded input from the anti-graft agencies.
The President is said to have been concerned after learning that the United Kingdom and South Africa have abrogated a similar agency in their jurisdictions.
A source said:
“We are disturbed that the new bill seeks to oust the powers of EFCC and six other agencies. It negates the anti-corruption agenda of President Muhammadu Buhari.
”The provisions of the bill appear to be part of a systematic and organised scheme to frustrate the operations of the EFCC and six other agencies and, thereby, derail the anti-corruption fight of this Administration.”
Critics of the bill believe that it is a clear attempt to derail the anti-corruption war because:
• Section 32 of the bill is a clear departure from the existing non-conviction based forfeiture as it creates a window for the suspect or any interested party to reclaim already forfeited assets;
• Sections 25, 64, & 69 of the bill allow the suspect to take benefit from the proceeds of his own crime by providing for the reasonable expenses for himself, dependants and legal team to be settled from the said proceeds; and
• by virtue of the provisions of Parts I, II and III of the Bill, the exercise of powers relating to civil forfeiture is restricted to the proposed Proceeds of Crime Management Agency. This is unreasonable and unjustifiable”.
“Presently, the relevant anti-corruption agencies exercise the power of civil forfeiture or non-conviction based confiscation.
“For instance, the massive recovery and forfeiture of assets to the Federal Government of Nigeria by the EFCC has been on the strength of the effective use of the provisions of Section 17 of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006, which is simple to understand and its constitutionality affirmed by various decisions of the Supreme Court,” the source said, pleading not to be named because he is not authorised to talk to the media on the bill.
The source regretted that most of the clauses in the bill are not strengthening the existing laws, contrary to the impression given to the public.
The source said:
“In the event that there is need for the enactment of this Bill, it should be aimed at strengthening relevant existing legislations and creating institutional framework for the efficient management and disposal of finally forfeited assets only.
”In a bid to give legislative backing to the various attempts at whittling down the powers of the EFCC and other anti-corruption agencies, Section 157 of the Bill sadly renders null and void any provisions of the enabling statutes of those agencies which are inconsistent with its provisions.
”Thus, elevating itself above all other relevant laws, including EFCC Act, ICPC Act, Police Act, Code of Conduct Bureau and Tribunal Act, NAPTIP Act, NDLEA Act, Evidence Act, Administration of Criminal Justice Act, Terrorism (Prevention) Act, Money Laundering (Prohibition) Act, Customs and Excise Management Act, etc.
”It is significant to note that Section 162 of the bill also seeks to delete several critical provisions of the enabling legislations of anti-corruption agencies. These provisions sought to be deleted are the tools used in achieving the giant strides in assets tracing, recovery and successful prosecutions by the EFCC and others.
“Hence, assent to this Bill will not only cripple the operations and the efficiency of the EFCC, but will also jeopardise the anti-corruption drive of Mr. President and reverse the gains already recorded by this Administration.”
Contrary to the existing legislations, the Bill gives so much protection to suspects and increases the burden of proof on the anti-corruption agencies in assets recovery proceedings.
“By the provisions of the bill, it will be difficult to seek and obtain information from financial institutions and also restrain transactions on suspicious accounts under investigation,” the source said.
Another source gave more insights into the bill.
The bill also makes it more cumbersome and financially burdensome on anti-corruption agencies to initiate and execute the processes leading to assets recovery.
”The bill seeks to remove the investigative powers of the anti-corruption agencies having primary responsibilities of investigation and recovery of the proceeds of crime, contrary to the Financial Action Task Force (FATF) guidelines.
“The said Section 162(3) of the Bill, which seeks to delete Sections 6(d), 13(2)(c), 20, 21, 22, 24, 25(a),(c)& (d), 26(1)(b), 29, 33 and 34 of the EFCC Act relating to its powers to investigate, prosecute and confiscate assets, contrary to the Financial Action Task Force (FATF) guidelines which state that a team responsible for assets recovery should be domiciled in an anti-corruption agency that has the authority to investigate and/or prosecute.
” Furthermore, the bill seeks to derogate the United Nations Security Council Resolutions (UNSCR) 1267, 1373 and other successive resolutions on Targeted Financial Sanctions against Designated Terrorist Persons and Entities.
”The implication of the deletion of Section 6(d) of the EFCC Act which gives the EFCC powers to investigate and enforce Terrorism (Prevention) Act as it relates to terrorism financing, is that the commission will be unable to implement the said UNSCR.”
President Buhari is believed to have has demanded briefs from all the agencies affected by the bill.
“The President has stayed action in assenting to the bill. Instead, he has asked all the agencies affected by the provisions in the bill to submit brief on their observations,” a Presidency source said.