Codifying Civil Asset Forfeiture in Nigeria
By Chukwuemeka Castro Nwabuzor Research Fellow, NIALS (firstname.lastname@example.org)
Forfeiture proceedings are an aspect of the asset recovery process. Forfeiture proceedings serve as powerful deterrent measures as they deprive criminals of the proceeds of their crimes. Generally, forfeiture proceedings are initiated in court where an application for forfeiture has been made by the prosecution. The court has powers to grant interim forfeiture orders pending the establishment by the prosecution that the property has a criminal origin (proceeds of crime) or was used in the commission of an offence (instrumentality of crime). The conviction of a defendant in Nigeria is a pre-requisite for obtaining a final order for the forfeiture of the proceeds of crime – this means that criminal forfeiture which is largely conviction-based forfeiture is what applies in the country and civil forfeiture is yet to be codified in Nigeria. Forfeiture proceedings are part of the sentencing process in Nigeria. Where there is a final forfeiture order, the properties subject to the order are usually forfeited to the Federal Government. See section 20(2) of the Economic and Financial Crimes Commission Act (EFCC Act).
Civil forfeiture is non-conviction based and its features are best highlighted when juxtaposed with criminal forfeiture. The action under civil forfeiture is against the property and not against the person as is the case with criminal forfeiture. A civil forfeiture action can be initiated before during, or even after criminal conviction. The action can also be initiated where no charge has been laid against a suspect unlike criminal forfeiture that is imposed as part of sentence. A conviction is required under criminal forfeiture but a conviction is not required under civil forfeiture. Civil forfeiture does not incapacitate offenders in the sense that punishment usually does by removing individuals from society. It does seek to incapacitate criminal organisations and ‘reduce their power and influence’ by divesting corrupt officials of their ill-gotten gains (Liz Campbell, ‘Theorising Asset Forfeiture in Ireland’). It should be noted that civil forfeiture is not an alternative to the prosecution of a criminal. In civil forfeiture proceedings, the property is the defendant. Thus the fact that proceedings are initiated against a crime-tainted property does not stop the prosecution from prosecuting the criminal who has connection with the property. Civil forfeiture however makes it less cumbersome and faster to recover the proceeds of crime as there will be no need to wait till the end of a lengthy trial before a final forfeiture order can be obtained.
While civil forfeiture requires the lesser standard of proof – ‘proof on a balance of probabilities’, criminal forfeiture requires proof ‘beyond reasonable doubt’. Under civil forfeiture proceedings, it is the State that has to prove that the property is the proceeds of unlawful activity. Where the State discharges this burden, the onus would be shifted to the defendant to discountenance the case of the State. This reverse onus is made possible by the lesser standard of proof without which the State would be required to face all the technicalities in discharging beyond reasonable doubt that the title of the property lies in unlawful activity. International Instruments like the United Nations Convention against Corruption (UNCAC) urge state parties to adopt civil forfeiture as a mechanism for asset forfeiture. Article 53 of the UNCAC requires State Parties to have a legal regime that allows another State party to initiate civil litigation for asset recovery or to intervene or appear in domestic proceedings to enforce their claim for compensation. Article 54(1)(c) of UNCAC urges State Parties to consider taking necessary measures to allow confiscation of property without criminal conviction (civil forfeiture). Nigeria is a signatory to the UNCAC and ratified the Convention in December, 2004. Nigeria is thus bound by the obligation under the UNCAC to have a civil forfeiture law.
The Intergovernmental Action Group against Money Laundering in West Africa (GIABA), in its Seventh follow up report on Nigeria in May 2015 noted with anticipation that Nigeria was finalizing work on a comprehensive legislation on asset recovery and on the codification of civil forfeiture and urged the Nigerian Government to intensify efforts to adopt an asset recovery regime that introduce will introduce a civil forfeiture regime.
GIABA’s report was referring to the Proceeds of Crime Bill which had gone through an advanced stage in the National Assembly and was even passed by the Nigerian Senate on the 3rd of June 2015. The Bill among other things sought to introduce a civil forfeiture regime in Nigeria. It is now more than a year since the release of the GIABA report and the comprehensive legislation on asset recovery and on the codification of civil is yet to be finalised. Much work thus is anticipated from policy makers and legislators to ensure that a civil forfeiture regime is a reality in Nigeria.
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