Recouping proceeds of corruption: is there any need to reverse extant trends by enacting civil forfeiture legal regime in Nigeria?
| DOI | https://doi.org/10.1108/JMLC-09-2020-0107 |
| Published date | 27 May 2021 |
| Date | 27 May 2021 |
| Pages | 806-833 |
| Subject Matter | Accounting & finance,Financial risk/company failure,Financial compliance/regulation,Financial crime |
| Author | Olusola Joshua Olujobi |
Recouping proceeds of corruption:
is there any need to reverse extant
trends by enacting civil forfeiture
legal regime in Nigeria?
Olusola Joshua Olujobi
Department of Public and International Law, Faculty of Law, Elizade University,
Ilara-Mokin, Nigeria
Abstract
Purpose –The aim of this study is to investigate how Nigeriacan seek legal assistance on recovery of its
stolen assetsto reduce corruption and to ensure no shelteredhavens for incomes from corruption.
Design/methodology/approach –The research adopts a conceptual method by using existing
literature with the applicationof doctrinal legal research technique. The research likewise uses primaryand
secondary sources of legislationssuch as legislative provisions, case laws and the provisionsof Chapter V of
the United Nations Conventionagainst Corruption and the process of asset recovery. The studycompares the
United Kingdom, USA, HongKong in China, South Africa and Nigeria proceeds of corruptionrecovery laws
to gain basic legal featuresthat would be beneficial to Nigeria in reforming its anti-corruptionlaws.
Findings –The principle of territorial sovereignty under the international law makes the offence of
corruption not punishable outsidethe jurisdiction of the state where the offence was committed. As a result,
some developed states boost theireconomy with these proceeds and the developing states are impoverished.
There is also an allegation of discrepanciesin the figures of funds recovered by the anti-corruptionagencies.
Thus, thereis the need for transparency; law on civil forfeiture of proceedsof corruption; bilateral treaties; and
mutual legal assistance oninvestigation, confiscation among countries for tracingand returning of proceeds
of corruption.
Research limitations/implications –The estimates of the volume of assets looted from Nigeriavary
widely becauseof the complexity of collecting data on proceedsof corruption as official statistics on proceeds
of corruption recovered do not existas each anti-corruption agency occasionally makes pronouncementson
the volume of assets recovered withoutany breakdown in terms of assets seized, nature of assets and their
locations and its values. Suchdata would aid policymakers to measure the effectiveness of the present assets
legislationsand to enhance its effectiveness.
Practical implications –Considering the clandestine manners corruption is being committed, it is
tasking to correctlyevaluate the amount of money stolen so, their economic impacts on the nation’seconomy.
Social implications –Absence of accurate data would aid policymakersto measure the effectiveness of
the present assetslegislations and to enhance its effectiveness.
Originality/value –The study offers modules on management of proceeds of corruption by establishing
“Assets Management Commission”and“Proceeds of Corruption Forfeiture Funds”for reparationof victims’
of corruption. The study suggests the necessity for civil forfeiture of proceeds of corruption, which is
presently lacking,and creation of Proceeds of Corruption Recoveryand Management Commission to manage
© Olusola Joshua Olujobi. Published by Emerald Publishing Limited. This article is published under
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JEL classification –Q4, Q5, K32, K12, K2, P28, K42
The financial contribution of Covenant University, Nigeria is greatly appreciated.
JMLC
24,4
806
Journalof Money Laundering
Control
Vol.24 No. 4, 2021
pp. 806-833
EmeraldPublishing Limited
1368-5201
DOI 10.1108/JMLC-09-2020-0107
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1368-5201.htm
such proceeds and advocate establishment of “Proceeds of Corruption Forfeiture Funds”for reparation of
victims of corruption.
Keywords Conviction, Civil forfeiture, Proceeds of corruption, Investigation, Nigeria
Paper type Research paper
1. Introduction
Corruption is a severe sore on the fiscal growth of any nation,and is a challenge of national
and international concern as vast amounts of funds that could be used for developmental
projects are lost annually because of this menace. It has undermined good governance and
economic advancement of Nigeria.Thus, there is a need to retrieve proceeds of corruption to
serve as a deterrent to corrupt activities and to combat corruption in the country.
Misappropriation of public funds in Nigeria is a serious problem as the sum stolen from
emerging economies and laundered from foreign countries annually is about $20–$40bn
(20%–40%; Jean-Pierreet al.,2011).
Moreover, the return of proceeds of dishonesty has been a crucial topic in many
intercontinental platforms in contemporary years because of the economic interests and
other concerns. However, presently, there is no generally endorsed meaning of
corruption. However, Transparency International’s Corruption Perceptions Index
describes corruption as the misuse of public office for personal advantages. In cont rast,
proceeds of corruption are assets or property obtained wholly or implicitly from the
crime of corruption (Adekunle, 2011).
Globally, confiscation of profits from corruption is an anti-corruption tool designed to
weaken the device of corruption suspects to serve as a disincentive to others, to facilitate
compensation of victimsof corruption and to strengthening anti-corruptionlegislations. The
Economic and Financial Crimes Commission (EFCC) Act, 2004 Laws of the Federation of
Nigeria 2004 provides that an individual sentenced under the Act shall lose to the Federal
Government all the possessions and assetswhich may be or are the substance of an interim
order of attachment by the commission. The aim is to ensure that a person convicted of an
offence is prevented from enjoyingthe benefits of his or her criminalities. Also, the agency, if
convinced that the funds in the bank deposit of a detained corruption suspect were gotten
via corrupt activities, may request the law court via motion exparte for a directive freezing
the account of such suspect. Confiscationis the permanent deprivation of corrupt suspects of
its proceeds by order ofa court of competent jurisdiction in Nigeria(Abdullahi, 2014).
Consequently, corruption suspects keep the proceeds of their corruption in tight water
cubicles and make every attempt to attribute theproceeds to particular crime illusory. It is
the duty of the anti-corruption agencyto demonstrate a strong linkage between the proceeds
of corruption and the alleged corruption where it is derived before the court can make the
order of forfeiture. There are two modes of forfeiture: conviction based on penal conviction,
where the assets are acquired via proceeds of corruption, whereas civil forfeiture is not
centred on the criminal conviction of the suspect but on the property. This is distinct or
separate from the person. It is based on the provision of the statute thatimposed pecuniary
penalties or forfeiture of theasset derived from crime, but this approach is presently absent
in Nigeria (Ayoade, 2015).
Equally, administrative confiscation occurs devoid of conviction or judicial
determination whereas disgorgement is a civil remedy that entails reimbursement of ill-
gotten wealth via an order of the court. Fines may also be imposed centred on the
significance of the profits obtained from the crime of corruption.The aim of the approach is
Recouping
proceeds of
corruption
807
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