EFCC’S Convictions And Role Of Judiciary In Anti-corruption War

By Wahab Shittu

The Economic and Financial Crimes Commission under the watch of
its Acting Chairman, Mr. Ibrahim Magu, has been posting
unprecedented record of achievements in terms of convictions of
those who are standing trial over corruption related matters. This
year alone, as at December 21, 2018, the following convictions were
recorded by various zones of the EFCC judging by records from
different courts nationwide: Total convictions recorded by EFCC as
at December, 2018: Abuja – 38, Lagos – 85, Kano – 36, Port Harcourt
– 33, Enugu – 15, Gombe – 28, Kaduna – 6 , Ibadan – 10, Benin – 27,
Maiduguri – 11, Uyo – 8; total – 29.

It is instructive to note that the record of such convictions
include high profile convictions, significantly the celebrated
convictions of the former Governors of Taraba and Plateau States,
Rev. Jolly Nyame and Joshua Dariye respectively. The two
ex-governors are now serving their prison terms in Kuje Prisons,
Abuja. The conviction of the former Executive Chairman of Ogori
Magongo, Mr. Gabriel Daudu affirmed by the Supreme Court early in
the year has raised significant jurisprudential contribution which
is the thrust of this paper.

Remarkably, in the celebrated case of Gabriel Daudu vs FRN
(2018) 10 NWLR (Pt.1626) 169, 183 E-F (2018) LPELR – 43637 (SC).
The Supreme Court made the mother of all pronouncements on burden
of proof in corruption cases. The apex court held: “The burden lies
on an accused person to explain properties he acquired which are
disproportionate to his KNOWN legitimate earnings.” The implication
of this judgment is that once it is shown that you have much more
than you should have had, then it is yours to explain the source of
such wealth. This is a major contribution by the judiciary
particularly the Apex Court to the war against corruption.

This is consistent with international standards and best
practices including recent legislations in civilized jurisdictions
around the world. The Supreme Court’s pronouncement is significant
because Prosecution of proceeds of crime in Nigeria is a heavy
burden mainly because of the requirement that criminal cases must
be established beyond reasonable doubt. Burdens and standards of
proof in criminal proceedings in possession of unexplained property
prosecutions particularly in the context of assets in excess of
legitimate earnings is a heavier burden because of uncertainty of
who bears what burden, for which facts the burden is applicable and
the required standard of proof to deliver successful
prosecutions.

Against the background of the recent Supreme Court case in
Gabriel Daudu v. FRN, there is the need to ask pertinent question-
whether in the light of statutory provisions including Section
19(2) of the Money Laundering (Prohibition) Act 2004 legislating
against possession of pecuniary resources which the defendant
cannot satisfactorily account for and which is disproportionate to
his known sources of income, the development can be said to have
raised the bar higher in the fight against corruption by
criminalizing assets in excess of legitimate earnings in
Nigeria.

The recent Supreme Court decision in Gabriel Daudu v. FRN has
progressively impacted on burdens and standards of proof in money
laundering cases particularly with respect to assets in excess of
legitimate earnings.

Honourable Justice Akaahs in GABRIEL DAUDU v. FEDERAL REPULIC OF
NIGERIA highlighted the challenges of burdens and standard of proof
in

money laundering cases when His Lordship observed as
follows:Proving Money Laundering cases is a herculean task because
it requires a prior establishment of the predicate offence before
the money laundering aspect can be established. To obviate this
problem a remedy was introduced by statutorily inferring money
laundering from not only the conduct of the defendant but his
lifestyle which is similar to the Proceeds of Crime Act 2002 of the
UK. Even though Section 36(5) of the 1999 Constitution (as amended)
provides that every person charged with a criminal offence shall be
presumed to be innocent until he is proven guilty, the proviso
allows for shifting the burden of proof on the defendant. The
Section provides thus:- “36(5) Every person who is charged with a
criminal offence shall be presumed innocent until he is proved
guilty provided that nothing in this Section shall invalidate any
law by reason only that the law imposes upon any person the burden
of proving particular facts”.

By Section 19(3) of the Money Laundering Act, if an accused
person is in possession of pecuniary resources or property which is
disproportionate to his known source of income, or he obtained an
accretion to his pecuniary resources or property, the burden of
giving a satisfactory account of how he made the money or obtained
the accretion shifts to him. The prosecution is relieved of the
burden of having to prove that the money so found in his account or
in his possession is proceeds from illicit traffic in narcotic
drugs or psychotropic substances or of any illegal act. To explain
the point further, where A is a fixed salary earner and suddenly
his account is credited with an amount beyond his income or has
property which his legitimate income cannot afford, the burden
shifts to him to explain how he got the money with which he bought
the property or the legitimate transaction he was engaged in for
which the account was credited.” Per AKA’AHS, J.S.C. (Pp. 13-14,
Paras. B-E)

The implication of the judgment is that as a result,
criminalisation of illicit enrichment including assets in excess of
legitimate earnings will ease the burden of proof on the
prosecution in establishing such offences and facilitate criminal
forfeiture of possession of unexplained property as a critical
anti-corruption fighting tool.

Significantly, the Supreme Court pronouncement is consistent
with recent legislations emanating from the United Kingdom. The
United Kingdom (UK) has introduced a new law in tackling
corruption. The law – under the law called Unexplained Wealth
Orders Regulations, it is now mandatory for the owner of property
worth over £50,000 to explain beyond reasonable doubt the source of
the property or risk its forfeiture.

The development has now shifted the burden of proof to the
defendant, rather than the old order of the defendant being
presumed innocent until proved guilty. It is remarkable to state
that the Supreme Court upheld the judgement of the high court and
Court of Appeal on the conviction of Gabriel Daudu and insisted
that those who acquire property and assets beyond their income must
explain the source of such wealth or acquisition.

Clearly, the Gabriel Daudu and FRN’s case may have given
judicial approval to statutory provisions contained under Section
19(2) of the Money Laundering (Prohibition) Act 2004, Section
15(a)(b) of Advance Fee Fraud and other Fraud Related offences Act
2006 and section 18(5)

of the Economic and Financial Crimes Commission (Establishment
Act) 2004 respectively; It represents a bold restatement of the law
on the element of burden of proof in money laundering cases,
particularly the fact that the evidential burden shifts to the
defendant to explain the source of funds in excess of legitimate
earnings standing in his account. This no doubt may have lessened
the burden on the shoulders of prosecutors charged with the
responsibility of prosecuting these cases.

A direct implication of the Supreme Court pronouncement is that
the burden of establishing that the funds/assets are in excess of
the legitimate earnings of the defendant still remains with the
prosecution and this must be proved beyond reasonable doubt.

Subsequently, having established the excess funds/assets beyond
legitimate earnings of the defendant, the burden shifts to the
defendant to explain the source of such earnings to the
satisfaction of the court.

In the words of Professor Adedeji Adekunle, the significance of
forfeiture in modern times, as a substantive penal measure is more
noticeable in relation to its deterrent and destabilising effect on
criminals or crime organisations. If in addition to conventional
penal measures like imprisonment, punishment is able to strike at
the motivating factor of the crime – the financial benefit – it is
likely to discourage many persons from committing such crimes.

Invariably crimes that are financially motivated involve a
deliberate calculation of risks and benefits by the offender. Where
the risk of detection includes also the risk of losing the benefit,
it is argued that this would sufficiently deter criminals. Some
jurisdictions have increased the stakes significantly by extending
forfeiture to circumstances where criminal trial does not take
place and also to any asset which is not necessarily derived from
the crime of conviction. The justification for this obviously is
that there is greater deterrence value in expanding the net of
assets at risk of forfeiture in the event of detection.

Secondly, beyond deterrence tool, forfeiture is of strategic
importance in criminal law enforcement as a substantive weapon for
tackling and weakening crime particularly where it occurs in an
organised form. The importance of money to organized criminal
activities is graphically described thus: Just as money is the life
blood of legitimate business and industry, so too, is it the life
blood of all domestic and international organized crime groups
regardless of the criminal activity giving rise to the proceeds. It
flow through the international banking system is what sustains the
illicit operations by providing the criminal with the constant
source of new capital needed to pay operating expenses and to buy
goods and services.

A deliberate systematic policy of seizing money and identified
assets of criminals deprives organized criminal activity of crucial
funds essential to its operations.

It can be argued that in Nigeria and on the strength of the
recent Supreme Court judgment in Gabriel Daudu v. FRN assets
acquired in excess of legitimate earnings will constitute a crime
giving rise to the liability of criminal forfeiture depending on
several variables.

First, the nature of the forfeiture proceedings is essential to
such determination. Forfeiture proceedings are in variety. I.
Non-conviction based asset proceedings are civil in nature being
action in rem. The penalty therefore in such proceedings is on
theproperty and not the defendant. This proceeding cannot be said
to occasion criminal consequences on a defendant except on his/her
property. However in a sense forfeiture of the property of the
defendant without trial and where the defendant is not available
under non-conviction based forfeiture can be argued to amount to
criminalising of the property, the proceeds of crime.

Where the forfeiture relates to conviction based forfeiture
proceedings, the result is criminalization of not only the
defendant but the proceeds of the crime. Proceeds of crime in this
sense including but not limited to perishable assets, and assets of
diminishing value, petroleum products (PMS, Gasoline, hydrocarbon),
vehicles, mechanically and electronically propelled vessels
including conveyance by air, sea, road, rail and space, crops,
livestock and foodstuffs, cash in hand, cash in a bank account,
going concerns, real estates amongst others. Any of these assets in
excess of legitimate earnings could be subject of either
non-conviction based forfeiture or conviction based forfeiture.

Adjunct to the above, there are sufficient justifications for
criminalising illicit enrichment including assets in excess of
legitimate earnings. One justification is that illicit enrichment
has been defined in various international and regional
anti-corruption instruments including UNCAC which defines it to
mean ‘a significant increase of the assets of a public official
that he or she cannot reasonably explain in relation to his or her
lawful income’. It also explicitly included the requirement of
intention (mens rea) for the crime to be committed. Apart from
UNCAC, no regional anti-corruption conventions as well as domestic
laws require intention as an element of illicit enrichment.

In addition, the scope of UNCAC seems restricted to the wealth
of the public official while the AU Convention transcends such
limitation by including the term ‘any other person’. This term was
incorporated because assets can be transferred easily to third
parties who are affiliated with public officials in one way or
another. It is also instructive as further justification that
consistent with Section 19(2) of the Money Laundering Act
disproportionate wealth and failure to justify the legitimacy of
the source of the alleged wealth are the elements of the offence of
illicit enrichment under the definitions.

The other justification may have arisen from the fact that
illicit enrichment is shrouded in secrecy, which creates
difficulties for its detection and investigation. However, property
in the hands of public officials and their families that are
manifestly in excess of their legitimate income would be relatively
easy to detect, investigate and prosecute. The extreme difficulties
in obtaining evidence to prove bribery and other related acts of
corruption demand a consideration of the criminalization of a
significant increase in the property of public officials.
Therefore, the inclusion of the offence of illicit enrichment in
the list of crimes of corruption is perceived to be an effective
way of combating corruption.

Based on the foregoing reasons, there is no doubt that it is
absolutely necessary to criminalize illicit enrichment including
but not limited to unexplained property and assets in excess of
legitimate earnings. Criminalisation of such offences has
advantages because it is associated with the standard of proof for
conviction. The prosecutor is required to prove beyond reasonable
doubt the disproportionate assets in the hands of the defendant in
relation to his legitimate income. One advantage of this
requirement is that the prosecutor is not required to prove bribery
or any form of corruption to succeed in the case, the prosecutor
only obligation being to show that the since the wealth is not
proportionate to the legitimate income of a public official it is
presumed to have originated from corruption unless the contrary is
proved. This may have eased the burden of proof on the
prosecution.

The advantages of criminalising illicit enrichment are
associated with the standard of proof required for conviction. In
prosecuting illicit enrichment as a crime of corruption, the
prosecutor should prove beyond a reasonable doubt the
disproportionate assets in the hands of the accused in relation to
his legitimate income. In this respect, the prosecutor is not
required to prove the fact that the accused has received a bribe or
committed any other form of corruption. Wealth that is not
proportionate to the legitimate income of a public official is
presumed to have originated from corruption unless the contrary is
proved. In such circumstance, the burden of proof is eased and the
prosecutor is not required to prove corruption as asource of the
wealth in question.

The reluctance to criminalise illicit enrichment may have arisen
out of the debate on human rights issues raised by some writers. It
is my view however that the need combat corruption and stolen
wealth by corrupt public officials makes such criminalization
compelling subject to safeguards to preserve fundamental rights of
the citizens.

The point that is being made is that owing to the networks of
intricacies involved in money laundering, the need to lower the
standard of proof and compel the defendant to also explain sources
of funds of doubtful and questionable origins is compelling. This
is not likely to be achieved by a strict adherence to the elements
of presumption of innocence without shifting of burdens in cases of
unexplained property. Any objection?

The proposal above supports this writer’s perspective of the
need for criminal forfeiture of assets in excess of legitimate
earnings.

It is also proposed that in shifting the burden of proof in
money laundering cases, the proof of assets in excess of legitimate
earnings in the proceedings must conform with constitutional
provisions. Three fundamental steps of compliance with
constitutional guarantee on criminal forfeiture include:

1. The ability to trace assets subject to forfeiture or proceeds
of crime in whatever form;

2. The ability to restrain by judicial order, dealings on such
assets; and

3. Statutory authorization of a judicial body to issue a final
forfeiture order over assets that have been restrained or which
have been traced.

Based on the foregoing analysis particularly the record of
conviction posted by EFCC under Magu’s watch and the recent
pronouncement by the Supreme Court in Gabriel Daudu vs FRN, it can
be said with sufficient justification that the EFCC and the
judiciary in waging war against corruption in Nigeria.

Significantly, the Supreme Court’s radical pronouncement in the
case of Gabriel Daudu vs FRN is a major contribution by the apex
court to the war against corruption and the judiciary ought to be
applauded for handling down this judgment.

Shittu is a Lagos-based lawyer and lecturer at
the University of Lagos.

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