AN APPRAISAL OF THE EFCC ACT 2004 IN DEALING WITH FINANCIAL CRIMES IN NIGERIA – JONAH UYO-OBONG
6. CHALLENGES WITH THE EFFECTIVE ADMINISTRATION OF THE EFCC ACT IN COMBATING FINANCIAL CRIMES
The EFCC in its early days was able to investigate,arrest and prosecute cases of financial crimes especially those involving Politically Exposed Persons (PEPs)[1]. However, previous studies revealed that the EFCC faces a number of challenges in its efforts to achieving its mandate[2]. Some of the challenges include:
a. Lack of Security of Job of the Chairman:
The lack of job and tenure security of chairpersons of anti-corruption agencies is a major challenge militating against the effective fight against corruption and financial crimes in Nigeria. The provision of Section 2(3) of the EFCC Act provides for the appointment of the Chairman and members of the Commission other than the ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate.
However, Section 3 (2) provides that a member of the commission may at any time be removed by the President for inability to discharge the function of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct or if the president is satisfied that it is not in the interest of the commission or the interest of the public that the member should continue in office. The provision of the various Sections of the Act by providing for the appointment of the chairman and other high ranking officers by the President only makes the EFCC an extension of the executive arm of the government[3]. In other words, these members very often carry out the biddings of the President and other persons instrumental to their appointment. This is an obstruction militating against the fight against financial crimes in Nigeria as high ranked officials within the EFCC are at risk of being fired by their employer, or better still by the President. Therefore, the EFCC is usually under pressure to do as dictated by the President to compensate for their jobs.
b. Abuse of Section 14 of the Act
The Section provides for compounding of offences by the Commission. The Section empowers the Commission to accept such money as it thinks fit exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence. Although this is not the same as a plea bargain, the Commission had applied this section as plea bargain in the case of the former Inspector-General of Police, TafaBalogun in 2005 and Emmanuel Nwude in 2006 by the Federal Republic of Nigeria (FRN) at the instance of the EFCC. Since then, plea bargain has been applied in other cases including FRN v Mrs Cecilia Ibru, FRN v. Lucky Igbinedion, FRN v. John Yusuf Yakubu[4]. Going by the concept of legality, which requires that a thing be provided for expressly in the law, this is desirable especially when it relates to criminal matters, rather than be the product of implication, inherence and/or abstraction, it may be posited that seeing as the phrase ‘plea bargain’ is not used anywhere and that the concept of ‘compounding an offence’ does not include any of the trappings of a trial to wit: the preparation and filing of a charge sheet, an arraignment and the
entering of a plea; but rather is an agreement to give money in exchange for non-prosecution of an offence, there are no statutory bases on which to stand this claim[5].
Nigeria, by virtue of the EFCC Act has legalised the compounding of offences by the EFCC within the purview of the Act; the EFCC represents the Nigerian people as the victims and is also the prosecuting authority which decides not to prosecute but this cannot be said to be plea bargaining, not by any stretch of the imagination, at least not as we understand the definition of the same. Ironically, the EFCC has been doing something else altogether that they do not have authority to do. A cursory look at the provision, one may argue rightly that there is no express or implied mention of plea bargaining under Section 14 (2) of the EFCC Act and as such, what the section envisages is ‘compounding of offences’ which is an act in which a person agrees not to report the occurrence of a crime or not to prosecute an accused in exchange for money or other consideration[6]. The Section does not show the nature and the type of the plea bargain neither does it show the stage of the proceedings at which the bargain may be initiated. There is also no laid down procedure or safeguards for plea bargaining andsuch agreement as envisaged under the EFCC Act does not necessarily culminate in a judgment neither does it lead to conviction nor sentencing.[7]This is a blank cheque and window of opportunity to the officers of EFCC for so much stolen wealth in exchange for secret gratifications.[8]The sum of money which the EFCC is to accept, at its discretion, is not referenced to the amount stolen or embezzled but to the amount of the fine to be imposed[9]. It is submitted that the entire provision made plea bargain an almost primordial instinct of the prosecutorial soul and gave the EFCC the prosecutorial power to manipulate cases and justice[10]. This confirms Dervan’s statement that ‘the history of plea bargaining is the history of prosecutors gaining increased leverage to bargain’.[11]
EFCC has been applying the concept of plea bargaining to release many corrupt criminals, including corporate criminals, who steal corporations’ funds and should have been in jail as deterrence to others. The EFCC has applied this procedure in very high profile cases, beginning with a former inspector-general of police, Mr TafaBalogun. The Defendant was arraigned on a 70-count charge of corruption on a massive scale, which were reduced to an 8-count charge of money laundering through plea bargaining. He was convicted and jailed for only 6 months. With regard to economic crimes involving companies, the procedure was adopted by the EFCC in the trial of Emmanuel Nwude and NzeribeOkoli who were charged for defrauding a Brazilian bank. Further, in the case of Federal Republic of Nigeria (FRN) v Mrs Cecilia Ibru, the Defendant, a former managing director of Oceanic bank defrauded the bank of large sums of money and was arraigned for an offence contrary to section 15 (1) of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks and punishable under section 16(1)(a) of the same Act. The punishment stipulated by the law is imprisonment for a term not exceeding five years without the option of fine. The defendant accepted to forfeit the assets worth over N150 billion which she fraudulently acquired. Consequently, she was sentenced to six months imprisonment without an option of fine[12].
The EFCC also applied the concept to the cases of DSP Alamieyeseigha who was arraigned on corruption charges and the Governor of Edo State, Lucky Igbinedion who was charged with stealing billions of naira from the public treasury on the 28th December 2018. The latter was convicted and sentenced to pay an infinitesimal fine of N3.5million. He was also to serve twelve years imprisonment on a six count charge of corruptly enriching himself while he was Governor. However, the sentence was to run concurrently and because he had remained in custody for two years, he was released few days after, under plea bargain agreement.[13]Thus, the concept has been criticized since it seems to be practiced to favour the rich and elite criminals who loot, launder and embezzle public funds for their selfish gains.[14]
c. Low Chance of Conviction for Politically Exposed Persons and Lack of Autonomy of the Commission:
This has been considered as the major significant challenge that limits effective performance of EFCC. In essence, cases involving politicians such as former governors and ministers are being deliberately frustrated. For instance, out of 31 former governors prosecuted since 1999, only three, Joshua Dariye, Jolly Nyame and Uzor Oji Kalu were recently convicted and jailed. This may be attributed to lack of adequate autonomy by EFCC to effectively perform its responsibilities. Hence, there is tendency for the Chairman of the Commission to be reluctant to continue with investigations against the president that appointed him or his associates belonging to ruling party.[15]
d. Structure of the Commission:
This makes the Commission answerable to the presidency; the security of the Chairman’s tenure in office, agency’s budget and funding which is subject to Senate and Presidential approval[16]. Evidence to this is that when the list of 135 corrupt candidates whom EFCC presented and disqualified them from contesting 2007 elections, the list was discredited and considered as an effort to hurt the political opponents of the then president.
e. Organizational Deficiency:
This is considered among the factors that limit effective performance of EFCC. For instance, 2013 and 2015 EFCC Annual report revealed that lack of training of officers is another challenge to effectively perform its mandate. However, EFCC in 2013 was able to train its operative staff in 17 training programs. While in 2015, 84 of the staff of the EFCC were trained abroad, mostly by non-governmental organizations.[17]
f. Inadequate Funding:
This has also remained a critical challenge to EFCC operation, thus only 54.17% of the approved 2018 budget of EFCC was released to the commission, while only 40.06% of capital expenditure was released.[18]
g. Over-stretching of Constitutional Immunity by the Commission:
Section 308 of the 1999 Constitution of the Federal Republic of Nigeria as amended, guarantees immunity from civil and criminal proceeding being instituted and continued against the president, vice president, governor and deputy governor during his period of office. The Commission have stretched the immunity provision to a ridiculous extent by refusing and neglecting to investigate this category of public officers for possible prosecution on the expiration of their tenure in office.[19] As rightly held in the case of Fawehinmi v IGP, Section 308 of the Constitution does not shield or protect any of the persons named therein from investigation.[20] The EFCC ought to have investigated Abdullahi Ganduje, the former governor of Kano State over bribery allegations who was conspicuously captured on camera receiving bribes in dollars, and was widely reported. Furthermore, in a situation where immunity is constitutionally guaranteed, it becomes difficult for the Commission to act before it becomes too late.[21]
7. COMPARISON BETWEEN NIGERIA, FRANCE AND IRELAND
According to the Global Organized Crime Index, the countries with the lowest rates of money laundering are Estonia, France, Iceland, and Ireland. Even though these countries have relatively low criminality rates, it is important to recognize that not having a high risk rating does not mean that money laundering issues are completely unaffected. Each country faces a distinct set of challenges, ranging from tax fraud to financial crimes enabled by cyberspace, highlighting the complex fight against illicit financial activities.[22]
FRANCE: France is a civil law country i.e a non-common law country. It has implemented rigorous measures to combat money laundering and terrorist financing. Despite these efforts, criminal organizations exploit avenues such as the betting and gambling industry, while white-collar crimes serve to recover funds lost to tax evasion. In response to the rise of online criminal networks, France is actively working to swiftly regulate these emerging activities. The country is recognized for its resilience against money laundering, continually enhancing its capabilities through ongoing measures. France has set out a number of impactful reforms to reinforce anti-money laundering practices over the past ten years. These include the creation of dedicated institutions, such as the Central Office for Fight Against Corruption and Financial and Tax Offences (OCLCIFF), the French Anti-corruption Agency (AFA) and the National Financial Prosecutor’s office (PNF). The latter was created in 2013 to streamline the handling of court cases related to financial crime in France and developing cross-border cooperation with partner international authorities. Since 2014, the PNF has handed back over 10 billion Euros to the public purse. FAFT also added that France takes on an active role in proposing designations to the EU and UN Sanctions List.[23]
The legislation that prohibits financial crime is the French Criminal Code and the Monetary and Financial Code[24]. The authority that has the power to prosecute, investigate and enforce cases of money laundering, terrorist financing and breach of financial/trade sanctions is the Ministry of Finance Anti-money Laundering Unit (Traitement du Renseignement et Action Contre les Circuits Financiers Clandestins) (TRACFIN)[25]. This body has the same function as the EFCC however whereas, the power to investigate and prosecute financial crimes is bestowed on the Commission and derived from the EFCC Act 2004, the power to investigate lies with TRACFIN; a unit under the French Ministry of Finance and is derived both from the Criminal Code[26] and the Monetary and Financial Code. While the power to proffer a criminal charge is referred to the Public Prosecutor if the known facts may constitute a criminal offence that is punishable by more than one year imprisonment or there is evidence of the offence of financing terrorism.[27]The Public Prosecutor may then decide to open a criminal investigation and in complex cases, appoint an Investigating Magistrate. In Nigeria, the legal and prosecuting unit of the EFCC is responsible for prosecuting offences laid down in the Act and other legislations bothering on economic and financial crimes.[28]The Act also mandates the Commission to coordinate not just the laws or regulations relating to economic and financial crimes, but also all existing economic and financial crimes investigating units in Nigeria.[29]The Commission also has a responsibility to maintain a liaison with the office of the Attorney General of the Federation.[30]
IRELAND: Ireland is a common law country. In Ireland, fraud including corporate fraud is governed principally by the Criminal Justice (Theft and Fraud Offences) Act 2001 and the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021[31]. Specific offences relating to Corporate Fraud include: Making a gain or loss by deception, obtaining services by deception, unlawful use of a computer, false accounting, suppression of documents, forgery, fraud affecting EU financial interest, conspiracy to defraud and fraudulent trading. The power to investigate fraud as well as bribery and corruption lies with the Garda National Economic Crime Bureau (GNECB), a specialist division of An Garda Siochana (AGS) (Irish Police Force) that is tasked with investigating fraudulent or economic crimes of a more serious and complex nature[32]. In addition, the Office of the Director of Corporate Enforcement (ODCE) investigates offences under the Companies Act 2014. The European Anti-Fraud Office (OLAF) can investigate potential fraud in Ireland which may affect the EU financial interests. While the DPP is responsible for prosecuting fraud offences in Ireland based on consideration of the file prepared by AGS following investigations[33]. It must be noted that there are no formal non-trial resolution mechanisms in place, for example, deferred or non-prosecution agreements. There is no formal mechanism for plea bargaining. However, in practice, an informal agreement with the prosecution can be made whereby an accused can agree to plead guilty to certain charges and prosecution can agree to withdraw or modify other charges. The decision to engage in these discussions is entirely at the discretion of the DPP who will require good reasons in fact or law for any withdrawal or modification of charges facing an accused[34].
In Nigeria, the EFCC Act 2004 provides for compounding of offences which allows the Commission, subject to Section 174 of the Constitution, to accept sums of money as it thinks fit exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence[35]. This money is paid into the Consolidated Revenue Fund of the Federation[36]. In Ireland, there is no provision for plea bargain but in practice an informal agreement which presupposes compounding of an offence, is obtainable. However, in Nigeria, in practice, the Commission practices plea bargain in setting free accused persons as against the provision of the EFCC Act on compounding of offences. Another distinction is that, under the law of Ireland, it is at the entire discretion of the DPP to compound an offence while in Nigeria, the provision to compound an offence under the EFCC Act 2004, is subject to the power of the Attorney General to institute, take over or discontinue a criminal proceeding against any person in court. The Commission is still solely responsible for compounding an offence under the Act but such power is subject to Section 174 of the 1999 Constitution.
8. CONCLUSION AND RECOMMENDATION
Financial crime has bedevilled Nigeria for decades with each administration deploying their arsenals towards fighting corruption, economic and financial crimes. Nigeria has lost billions if not trillions of naira to financial crimes. In April 2024, the former CBN governor was arraigned for offences bordering on fraud to the tune of N80.2 billion. In May 2024, two executives of Binance Nig. Ltd (a cryptocurrency trading platform) were arraigned before the Federal High Court, Abuja with the Federal Government alleging tax evasion and non-compliance with the directive of the government to stop operations within Nigeria due to failure to obtain the necessary licenses for operation. The EFCC being an establishment of the EFCC Act and also an offshoot of the executive arm of government has become a partisan tool in the hands of the executives; this among other limitations has forestalled the fight against financial crimes as criminals, both in the private and public sector, are ever evolving in their ideas, constantly inventing new ways to defraud and loot money. Therefore, it is recommended that:
a. Section 35 (3) of the EFCC Act which allows the Commission to accept monetary gifts, lands and other properties should be expunged. This is based on the fact that as the Financial Intelligence Unit of the country with a statutory responsibility to investigate all financial crimes and also enforce the provisions of all economic and financial crimes laws, it will be out of place for the same Commission to accept gifts especially from politically exposed persons. This is to ensure transparency in its resolve to fight financial crimes.
b. Section 14 of the EFCC Act expressly provides for compounding of offences and not plea bargain. Therefore, based on the principle of legality, the Commission should desist from applying Section 14 of the EFCC Act as plea bargain to release accused persons. Alternatively, amend the Section to expressly provide for plea bargain; stating the stage at which it can be applied as well as the circumstances wherein the concept can be invoked.
c. Section 2 (a) (ii) of the EFCC Act should be reviewed to allow for the accommodation of career trained EFCC members with requisite knowledge or expertise in financial crimes intelligence as the qualification to the office of the Chairman of the Commission.
d. Section 3 (2) of the Act should be reviewed to allow the removal of the Chairman or any member of the Commission on the recommendation of the President subject to the confirmation of the Senate. This is to avoid leaving the removal of any member of the Commission especially the Chairman at the whims and caprices of the President whose reason for removal maybe tainted with bias.
e. The Commission should be supported with adequate funding and independence to function optimally in its responsibility in fight financial crimes as external influences especially from politically exposed persons often hampers its efforts in fighting financial crimes.
f. Section 25 (d) of the Act which provides for further provisions as to forfeiture of all real property which is used or intended to be used in any manner or part to commit, or facilitate the commission of an offence under the Act, should be reviewed in cases where the bonafide owner of a property or title in any parcel of land, other than the accused, who had no knowledge that the property was used to commit an offence under the Act or reasonably believed that the property was acquired for a good purpose, should be exempted. Properties subject to forfeiture should be those owned by the accused purchased from proceeds of the crime committed by the accused.
g. Nigeria should take a cue from Ireland where the Ireland Police has a special division under it that investigates complex financial crimes. The responsibility to investigate financial crimes should be extended to the Nigerian Police Force by the creation of a special division or unit under the Police solely to investigate financial crimes. Reports gathered from this special division will be sent to the EFCC. This can assist the Commission in fast tracking investigations.
h. In a situation where immunity is constitutionally guaranteed, such immunity should only extend to government officials to protect them against civil actions only for official acts done in the discharge of statutory duties and no immunity should be accorded to any government official who is indicted for financial crimes while in office. Such government official should be prosecuted upon due and proper investigation.
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[1]Human Rights Watch, ‘Corruption on Trial? The record of Nigeria’s EFCC’ New York: Human Right Watch <https://www.hrw.org/reports/2011/08/25/corruption-trial-0> accessed 7 June 2024
[2]Sowunmi F. A, Adesola M. A. & Salako M. A., An Appraisal of the Performance of the Economic and Financial Crimes Commission in Nigeria, International Journal of Offender Therapy and Comparative Criminology, 1047-69
[3]Samson OjodomoOnuche, Examination of the Challenges on the Fight Against Corruption in Nigeria, SSRN Electronic Journal <https://www.researchgate.net/publication/344836316> accessed 26 June 2024
[4]Nicholas IoremberIorun, Rachel NwasoluImbwaseh and Matthew Atonko, Plea Bargaining as Economic Crimes Involving Companies in Nigeria: A Palliative to the Festering Wounds of Corporate Stakeholders Without Cure, Benue State University Law Journal 2020 71
[5]Tope Adebayo LLP, The Legality of the Use of Plea Bargain in the Nigerian Criminal Justice System <https://www.topeadebayolp.com> accessed 13 June 2024
[6]ibid
[7]Nicholas IoremberIorun, Rachel Nwasolu Imbwaseh and Matthew Atonko, Plea Bargaining as Economic Crimes Involving Companies in Nigeria: A Palliative to the Festering Wounds of Corporate Stakeholders Without Cure, Benue State University Law Journal 2020 71
[8]Ted C Eze and EzeAmaka G, ‘A Critical Appraisal of the Concept of Plea Bargaining in Criminal Justice Delivery in Nigeria’ (2015) Global Journal of Politics and Law Research <https://www.eajournals.org> accessed 26 June 2024
[9]Nicholas Iorember Iorun, Rachel Nwasolu Imbwasehand and Matthew Atonko, Plea Bargaining as Economic Crimes Involving Companies in Nigeria: A Palliative to the Festering Wounds of Corporate Stakeholders Without Cure, Benue State University Law Journal 2020 73
[10]ibid
[11]Lucian E. Dervan. ‘Plea Bargaining’s Survival: Financial Plea Bargaining, a Continued Triumph in a Post-Enron World’(2007) Oklahoma Law Review, 451-488
[12]Nicholas IoremberIorun, Rachel Nwasolu Imbwasehand Matthew Atonko, Plea Bargaining as Economic Crimes Involving Companies in Nigeria: A Palliative to the Festering Wounds of Corporate Stakeholders Without Cure, Benue State University Law Journal 2020 74
[13]Ted C Eze and EzeAmaka G, ‘A Critical Appraisal of the Concept of Plea Bargaining in Criminal Justice Delivery in Nigeria’ (2015) Global Journal of Politics and Law Research <https://www.eajournals.org> accessed 26 June 2024
[14]Nicholas IoremberIorun, Rachel Nwasolu Imbwasehand Matthew Atonko, Plea Bargaining as Economic Crimes Involving Companies in Nigeria: A Palliative to the Festering Wounds of Corporate Stakeholders Without Cure, Benue State University Law Journal 2020 74
[15]Onyema et al, ‘The Economic and Financial Crimes Commission and the Politics of Effective Implementation of Nigeria’s Anti-corruption Policy’ ACE SOAS Paper No. 7/2018 <https://ace.soas.ac.uk> 1 July 2024
[16]Section 35 (1)(2) EFCC Act 2004
[17]Onyema et al, ‘The Economic and Financial Crimes Commission and the Politics of Effective Implementation of Nigeria’s Anti-corruption Policy’ ACE SOAS Paper No. 7/2018 <https://ace.soas.ac.uk> 1 July 2024
[18]Magu Ibrahim, Magu List Challenges, Achievements as he Defends Budget, <https://www.prnigeria.com> accessed 1 July 2024
[19]Micah Christian Sample, ‘Institutional Architecture in the Fight Against Corruption in Nigeria: A Critique’ (LL.B thesis, University of Calabar 2019)
[20]ibid
[21]Ibid 53
[22]Sanction Scanner,‘Anti Money-Laundering-5 Countries with the Lowest Money Laundering Risks’ <https://www.sanctionscanner.com/blog/5-countries-with-the-lowest-money-laundering-risks-831> accessed 3 July 2024
[23] Theo Bourgery-Gonse, France Effective in Combatting Financial Crime, though Some Critical Gaps Remain (2022) <https://www.euractiv.com/section/economy-jobs/news/france-effective-in-combatting-financial-crime-though-some-critical-gaps-remain/> accessed 4 July 2024
[24]Antoine Kirry, and Alexandre Bisch, Debevoise& Plimpton LLP, Financial Crime in France: Overview (2022) <hhtps://www.debevoise.com>
[25]ibid
[26]Code De Procedure Penale (CCP)
[27]Article L561-30-1, Monetary and Financial Code
[28]Section 13 (2), 7 (2) (f) EFCC Act 2004
[29]Section 6 (n) ibid
[30]Section 6 (o) ibid
[31]Deirdre O’Mahony et al, Financial Crime in Ireland: Overview, (2023) <https://content.next.westlaw.com/practical-law/document/I5635ac588dec11ee8921fbef1a541940/Financial-Crime-in-Ireland-Overview?viewType=FullText&transitionType=Default&contextData=(sc.Default)&bhcp=1> accessed 4 July 2024
[32]ibid
[33]Deirdre O’Mahony et al, Financial Crime in Ireland: Overview, (2023) <https://content.next.westlaw.com/practical-law/document/I5635ac588dec11ee8921fbef1a541940/Financial-Crime-in-Ireland-Overview?viewType=FullText&transitionType=Default&contextData=(sc.Default)&bhcp=1> accessed 4 July 2024
[34]ibid
[35]Section 14 (2) EFCC Act 2004
[36]Section 14 (3) ibid