EDIFYING BY OKEY IKECHUKWU

The national Assembly (NASS) should listen to the Central Bank of Nigeria (CBN) and rethink its planned enactment of a new anti-money laundering law. The existing Money Laundering (Prevention) Act of 2011 should ideally be appropriately amended. A close study of the existing Money Laundering (Prevention) Act shows that it would be best to amend it, instead of repealing it and enacting an entirely new one. The presuppositions of the existing law are well known. They are also tried and tested. The strengths and presumed weaknesses are known. What to do, and what steps to take, to make the law more efficacious are also known. Thus, the position of the CBN that “Where the existing Money Laundering (Prevention) Act 2011 is repealed and re-enacted, there would be new legal foundations which have not been assessed against the FATF (Financial Action Task Force) standards” makes sense.

A casual observer may assume that replacing a law that is deemed deficient in some material particulars is in order. But it is not that simple. It is true that, in the instant case, some may argue that there is a Mutual Evaluation Report, complete with whatever deficiencies it may have identified. But does this rule out the possibility that a new law may likely be deficient in other areas not limited to the deficiencies identified in the Mutual Evaluation Report? The additional point, as canvassed at the recent public hearing, that “…the new law will have to be completely reviewed by the FATF and GIABA (Inter-Governmental Action Group against Money Laundering in West Africa) for compliance with FATF recommendations” makes it clear that enacting a new law may be a drawback in the anti-money laundering war.

The foregoing can be easily inferred when we consider that: “There will be a risk that the international assessment identifies new gaps which would lead to rating downgrades.” Given the above, and especially considering that the goal is to raise the ante in the nation’s anti money laundering efforts, our lawmakers should please listen attentively to the objections being raised by the CBN. They should also note that the institution not only raised reasonable arguments against the proposed law, but “attached a copy of a proposed amendment to the 2011 Act for consideration and necessary action.” This progressive move should not be overlooked, or downplayed.

Concerning the matter of establishing a special outfit to manage the proceeds of crime, the Senate Joint Committee on Anti-Corruption and Financial Crimes; Judiciary, Human Rights and Legal Matters, as well as Ethics, Privileges and Public Petitions, may wish to take a deep breath and think matters through. The Joint Committee should also take seriously the objections of the Economic and financial Crimes Commission (EFCC) to its planned enactment of a law setting up a Proceeds of Crime Agency, or Commission. In fact, the bills on ‘Money Laundering (Prevention and Prohibition) 2021’, ‘Public Complaints Commission (Repeal and Re-Enactment) Bill, 2022’ and the ‘Proceeds of Crimes (Recovery and Management) Bill, 2021’ need comprehensive re-evaluation. If the purpose of the public hearing was to get stakeholders’ input into the three proposed anti-corruption bills, then the valid points made by the EFCC on the proposed Proceeds of Crimes (Recovery and Management) Bill deserve more than passing attention.

I agree completely with the EFCC that there is no need to establish a commission to handle forfeiture of assets acquired through criminal and illegal activities. The courts and anti-graft bodies can handle such things -and they have been doing so for a long time now. Just think of the crises and controversies that trailed the activities of the Presidential Panel on Investigation and Recovery of Public Property. The Justice Ministry’s call for an agency that “would only help us to recover stolen revenue” beggars belief. To say that “It would handle civil forfeiture for us” is to suggest that there is a problem with the way civil forfeitures are being handled at the moment. Is there?

To argue that “Our agencies right now are handling criminal forfeitures which means we have to wait until they are done with prosecutions before they can now come back to do recovery …” is to suggest a procedural urgency that no one but the Justice Ministry can see. The claim that it will “also help Nigeria to gain reputation in the global community” simply stands truth on its head.
Any serious conversation about fighting corruption and money laundering must begin by taking a calm look at the statutory powers of many existing institutions, rather creating new ones. As observed on this page on October 16, 2020, “The budgetary provisions and expenditure headings of the last twenty years show a benumbing record of dreadfully low performance on all fronts. Roads, health, electricity, national security, education, policy consistency, war against corruption, equipping of the armed forces are all in the red.”

The article under reference, titled “SARS and Proceeds of Crime Agency” frowned at the fact that “the major concern of the federal government is the creation of a special agency to receive and manage all monies and assets recovered from corrupt individuals and organizations in the alleged on-going war against corruption.” It pointed out that “There are Transparency Monitoring Units and SERVICOM offices in our MDAs. Then there is the Bureau of Public Procurement. One of them, or all of them put together, should be in the first line of fire whenever cases of inflated, poorly executed, or unexecuted, contracts are mentioned anywhere in Nigeria.” But do you ever hear of these Agencies, Departments, or their staff as parties to any legal issue on corruption in Nigeria? Should they be deemed clean and proper institutions when we cannot really point so obviously to their contributions and impact?

To repeat, further, what was said here back then: “SERVICOM (Service Compact with Nigerians) is an agency of government set up to ensure that “Nigerians are well served” whenever one kobo is spent in their name. It should ordinarily have been the main, and only, whistle blower in the Federal Republic of Nigeria since it came into existence. But what do you see today in the MDAs? Ask yourself what SERVICOM, and many other agencies of government, bring to the table. Check out their monthly wage bills. Sad, is it not? That over 400 parasatals incur a lot of overhead, for doing nothing. It is actually the failure of government to provide the right environment for the private sector to create jobs that has led to the wrong notion that it is the primary business of government to create jobs within its services departments.”

Continuing, the article of over a year ago said: “That we now have a Bill for the creation of a “Proceeds of Crime (Recovery and Management) agency” blows the myopia of the federal government completely out of the water. An agency to receive and manage the proceeds of crime? If established, the Agency will receive and manage all recoveries, including seized properties and assets, on behalf of the federal government. This is an outright Vote of No Confidence on the existing anti-graft agencies. The assumption, or presumption, is that we need a new agency, rather than that we need to find out how to fix what is wrong with the “processes and methods” within the existing agencies. This habit of tumbling out an epidemic of new agencies, instead of bending down to do things properly, has become the bane of governance in Nigeria. Just consider the killed Bill on Hate Speech. It called for capital punishment, as penalty for hate speech. Hare-brained ideas, everywhere!”

Concerning the wider negative effects of always creating new agencies, it was said here: “Every new agency created by the government must have a Chief Executive. Each such Chief Executive will also most likely have a bullet proof SUV. This could be in addition to a Pilot Vehicle, escorts, CSO, a media crew and much more. Add a fully staffed outfit, complete with a “befitting” National Headquarters and much more. What do you get? Consumption and avoidable expenses, with little of lasting value to deliver, everywhere! Look at the Diaspora Commission, for instance. This should actually be a Unit, or Desk, in the Ministry of Foreign Affairs. But it now has a life of its own. The impact of all of this on recurrent expenditure and the cohesiveness of government are not being considered.”

Let us get real for once and focus on what will save Nigeria for us all. The CBN is not asking our law makers not to make laws against money laundering. It is also not asking them not to repeal obnoxious, or dated, laws. It is simply calling their attention to the fact that the national interest will be better served by an amendment of the existing law, rather than the enactment of a new one.
In the same way, the EFCC is not opposing forfeiture of illegally acquired property, no! It is simply saying that we do not need to set up an elaborate institution, such as a commission, for this purpose. That is all.