The Need for a “Civil Asset Forfeiture Law” in Nigeria. By Barr Alex Ehimhantie Aidaghese. November 10, 2022
According to the FBI, "Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture "takes the profit out of crime" by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities." - The Federal Bureau of Investigation.
A "Civil Asset Forfeiture Law" (CAFL) takes possession or would confiscate your bank accounts or landed property, without actually sending you to jail or even filing a case against your person in the meantime. It targets only the fruits of crime. In other words, it goes after everything that you have acquired through fraudulent activities or corrupt practices. Thus, eroding your ability (the financial muscles) to continue in the trade or fight whatever criminal case is instituted against you. The goal is to bankrupt you.
Equally important, the process eliminates the laborious "proof beyond reasonable doubt" threshold of criminal prosecution and supplants it with the "preponderance of the evidence" standard of a civil case.
Above all, there is a lot of money to be saved in the process by the government (Prosecutor). Because it eliminates the hiring of a behemoth of SANs as well as other litigation-related expenses.
The United States of America has it. Great Britain has it. Australia has it and some other developing countries, too. Why not Nigeria? And that is the argument coming up below.
The Applicable Standard of Proof.
The standard is very clear. Once probable cause has been established by the Prosecutor or the EFCC, the burden of "proof of not guilty of the offense charged," shifts to the accused or the owner of the Bank Accounts or landed properties.
All that is required of the Prosecutor or EFCC is to show "probable cause" for the underlying fraud or embezzlement. Once the Prosecutor or EFCC has established a "prima facie case for fraud, scam, or embezzlement," then, proof of innocence or "I am not guilty," shifts to the accused or the owner of the Bank Accounts or properties.
If they cannot establish an ascertainable source or sources of income or the means of the new wealth, then such wealth - Bank Accounts and Properties should, as a matter of law, be forfeited automatically to the state (Nigeria).
That's what a Civil Asset Forfeiture Law is all about. It unmasked you; denying you the financial power to continue to fight and defend yourself in subsequent criminal proceedings.
And as the FBI rightly stated, it eliminates the ability of the culprits to command more resources to remain in business or hire high-power lawyers to subvert the prosecution or legal process.
A Commonsense Analysis:
For instance, why do we have to invest the taxpayers' money to prosecute a Police Officer, Civil Servant, or Military Officer who has accumulated multi-million Dollar worth of landed properties and Bank Accounts at home and abroad, when ordinarily, he cannot afford or acquire them through his regular salary? Why?
That is the puzzle that "Civil Asset Forfeiture Law" is designed to unravel - it is simply a preemptive strike. It takes away your ability to fight the government or remain in illicit exploits. If you are dispossessed of your loot or the embezzled funds, invariably, you are automatically disarmed from hiring the best lawyers and SANs in town to buy you favorable justice.
Consider for a moment the egregious nature of the scams perpetrated by bogus Petroleum Marketers on NNPC a few years ago, as well as the unceasing frauds at our various Pension Funds Departments, a "Civil Asset Forfeiture Law" would no doubt, be a time and money saver for the state.
Also, given the fact that it is an in rem proceeding (solely after the fruits of crime and not the criminal), we can easily deploy it against a sitting President, Vice President, Governor, and Deputy Governor to forfeit their ill-gotten wealth or embezzled funds to the State, without violating the Immunity protection under section 308 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
Furthermore, we shouldn't forget the exorbitant legal fee charged by celebrity lawyers and SANs in prosecuting fraud-related cases on behalf of the government. Too much wastage of valuable resources to be considered or averted.
First, the accused stole our money. Then, we have to retain and pay expensive lawyers to handle the prosecution of the case. And you and I know that most of these criminal prosecutions are replete with unpredictable outcomes.
On the other hand, the thieves or the fraudsters have nothing to lose, because they did not sweat, labor, nor invest a dime to acquire the funds they are dissipating to hire the best lawyers in town to protect their ill-gotten wealth. In other words, they are using government money - our money that they stole, to fight us and defend their criminal acts. And that's should be unacceptable.
In a nutshell, a shift in the burden of proof from the Prosecutor to the accused will expedite the seizure process, and at the same time, will drastically lessen the workload of EFCC or our Prosecutors.
As I said earlier, most of these cases, thanks to their super lawyers, are often frustrated or thrown out through procedural rigmarole, legal technicalities, or permanent injunctive reliefs, without reaching a final verdict on the merit. And the substantive cases are dead on arrival - never tried.
We can do better. And we can eliminate that unpredictability by taking away the financial power and ability of the fraudsters to remain in business or go about forum shopping on how to imperil hearing the case.
Conclusion!
I want to make it abundantly clear that I am not a communist or socialist. I am not against capitalism or private ownership and the acquisition of wealth. However, I am unequivocally against over-leveraged capitalism and the prevailing culture of impunity and blatant abuse of public office by those vested with such power.
To continue to enrich yourself with money, cars, and property that you and your immediate family members cannot utilize under normal circumstances, borders on insanity and stupidity. It is not fair. It is not right. And it is morally repugnant. Therefore, it must stop for Nigeria to experience its true potential and greatness.
Mr. Alex Ehi Aidaghese (LL.M) is the Accord Senatorial Candidate for Edo Central Senatorial District
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