Tag: Loot recovery

In the past few days, the Economic and Financial Crimes Commission (EFCC) has been hauling in cash upon cash. The latest were the $43.4million, 27,000 pounds and N23million recovered from House 6, Apartment 7B in Osborne Towers, Ikoyi, Lagos. The recoveries were aided by whistle-blowers. But to some critics, the anti-coruption war is not on course because the EFCC and other anti-graft agencies have lost some court cases. Is that a yardstick for measuring the success or otherwise of the anti-graft war? ROBERT EGBE examines the issues.

Man alone by himself cannot get rid of corruption from the world, he needs the assistance of God – Former President Olusegun Obasanjo.

 

To many, Obasanjo’s remark at the 2017 Convention Lecture of the Victory Life Bible Church International was an admission that no headway is being made in the anti-corruption crusade. Without mincing words, he sought divine intervention in what is clearly a problem. But no matter, the war is going on. Will it ever end? This is the question many Nigerians are asking. Two contrasting  events in the last two weeks brought about the poser.

The first is the success of the Federal Government’s whistle-blower programme. The second, the government’s losses in high-profile criminal matters.

 

Loot recovery

 

Early this month, the Federal Government recovered huge sums in various currencies, following tip-off from whistle-blowers.

On April 7, the Economic and Financial Crimes Commission (EFCC) found N448,850,000 in a shop at LEGICO Shopping Plaza, Ahmadu Bello Way, Victoria Island, Lagos.

On April 10, it intercepted 547,730 euro, £21,090 and N5,648,500 at the popular Balogun Market on Lagos Island.

Two days later, it uncovered its greatest find yet, $43,449,947, £27,800 and N23,218,000 at No. 16, Osborne Road (Osborne Towers) in Ikoyi.

These boost the N57.9 billion and $666.68 million that the Attorney-General of the Federation and Minister of Justice Mr. Abubakar Malami said the government had recovered through its anti-corruption war, as at last February 24.

 

Fed Govt ‘recovering’ its own money?

 

The circumstances surrounding some of the recoveries have raised a few eyebrows, prompting suggestions from critics that the finds could have been staged.

Last March 14, the EFCC said it impounded N49million abandoned in five sacks at the Kaduna International Airport.

Head of its Kaduna Zonal Office, Mr. Ibrahim Bappah, told reporters that the owner could not authenticate the amount in the sacks and disappeared before EFCC officials arrived at the scene.

“His inability to give any concrete explanation made him become uncomfortable and he disappeared into thin air before the arrival of EFCC operatives,” he said.

The commission has not revealed the name of the mystery owner.

Specifically, last Wednesday’s recovery of $43,449,947, £27,800 and N23,218,000 and the controversy over its ownership have generated conspiracy theories.

The money, which have been temporarily forfeited to the government, following a Federal High Court order, has reportedly been claimed by the National Intelligence Agency (NIA).

Rivers State Governor Nyesom Wike has also claimed that the money belong to his state, being proceeds from the sale of gas turbines by the immediate past administration of Rt. Hon. Rotimi Amaechi.

Amaechi has described Wike’s allegation as the latest in the long list of “blatant lies with no proof, same old concocted stories of corruption allegations against Amaechi told with different flavours.”

According to a constitutional lawyer Chief Mike Ozekhome (SAN), some of the recoveries were simulated by the commission.

He said: “Here in Nigeria, the EFCC engages in grotesque media trial, highfalutin and shocking disclosures of orphaned money whose destinations after the media hype are never known.”

Ozekhome, against whom the EFCC is in the Court of Appeal over the lifting of a forfeiture order on a disputed N75 million paid him by Ekiti State Governor, Ayodele Fayose, likened the finds to a red herring.

He said: “The truth is that all these simulated ‘arrangee’ discoveries can only temporarily divert attention from the hunger, squalor, fear, disease, not performance and cluelessness of this government.

“But, unfortunately, even lies have their expiry date. Truth is inexorable, immutable and eternal. The chicken will finally come home to roost.”

Not everyone shares Ozekhome’s views.

Malachy Ugwummadu, National President of the Committee for the Defence of Human Rights (CDHR), believes the policy has made notable achievements.

He said: “The whistle-blower policy is paying off and, if on an almost daily basis, as it has turned out to be, recoveries are made, which recoveries were literally almost impossible in the past except through a tortuous legal process that most often end up in an acquittal or discharge verdict, then it would mean that a humongous amount of money recovered from private homes and havens are already worthy of note.”

 

Court losses

 

Perhaps the most important battle-front of the anti-corruption war could also be its Achilles heel.

While the government is making unprecedented progress in loot recovery, it is getting its nose bloodied in the courts.

In the first week of this month alone, three government agencies lost four major criminal matters.

The Economic and Financial Crimes Commission (EFCC) lost two, the Independent Corrupt Practices and other related offences Commission (ICPC) lost one, while the Department of State Security (DSS) also lost one.

The EFCC lost the first case when on April 3, Justice Abdulaziz Anka of the Federal High Court, Lagos lifted the temporary forfeiture of N75 million in the account of Chief Ozekhome (SAN).

A day later, it was the ICPC’s turn, when former Minister of Niger Delta Godsday Orubebe was discharged and acquitted by Justice Olukayode Adeniyi of an Abuja High Court over alleged complicity in a N1.97 billion contract fraud.

On April 5, an Abuja High Court dismissed the 18-count corruption charge filed by the DSS against Justice Adeniyi Ademola, his wife Olubowale and Joe Agi (SAN).

The last of the cases was that of former first lady Patience Jonathan whose $5 million in a Skye Bank account was unfrozen by the Federal High Court, Lagos.

Following these loses, concerns have mounted over whether the war is retrogressing.

Socio-Economic Rights and Accountability Project (SERAP) urged President Muhammadu Buhari to adopt a ‘revolutionary approach’ by referring high-level official corruption cases to the International Criminal Court for investigation and possible prosecution.

Former President Olusegun Obasanjo suggested that the government needed to hire the services of ‘Ogbologbo’ (highly experienced) lawyers and stop the practice of farming out corruption cases to external lawyers.

 

No setback

 

Are four unfavourable rulings and judgments enough to say that anti-graft war has suffered a setback?

The records, particularly for the EFCC, show otherwise. Last year alone, the commission, according to a report on its website, secured 125 convictions.

This included the May 20 five years’ imprisonment handed a former Nigerian Maritime Administration and Safety Agency (NIMASA) Director-General, Temisan Raymond Omatseye, over a N1.5 billion contract scam.

Also, last March 6, a Yola High Court sentenced a former Governor of Adamawa State, Mr James Bala Ngilari, to five years in prison. It was the first time since 1999 that a former civilian governor was sent to prison without fine.

Lawyer-activist Chief Femi Falana (SAN) does not believe that the four losses have knocked the war off track or that they are examples of corruption fighting back.

Nevertheless, he has predicted that more corruption cases will be lost unless the anti-graft agencies are re-organised and the anti-corruption policy is reviewed in line with the proposals of the Presidential Advisory Committee Against Corruption (PACAC).

Speaking at a train-the-trainer programme organised by the United Nations Development Programme (UNDP) and Human and Environmental Development Agenda, HEDA, in Lagos, he explained why the cases were lost.

He said: “As far as I am concerned, the cases were lost due to official negligence and lack of inter-agency cooperation by the Federal Ministry of Justice, the anti-graft agencies and the DSS.’’

 

PACAC’s proposal

 

Among the many proposals made by PACAC to the government, the one for the establishment of the Special Crimes Court stands out.

The objective of the Special Crimes Court Bill 2016 is stated in its title as follows: “An Act to provide for the establishment of a Special Crimes Court as a superior court of record to allow for speedy  trials of certain offences, including economic and financial crimes, terrorism, money laundering and corruption offences and for related matters.”

Passage of this bill would ensure speedy completion of, among others, strategic financial cases such as those involving funds seized from looters.

This could be a boon to the whistle-blowing policy where ownership of such funds are being contested and cannot be spent until the cases are concluded.

However, the bill has not been passed into law by the National Assembly.

PACAC’s Special Crimes Court will be the first to be established by a democratic government in the country.

 

Falana’s solution

 

Falana believes several reforms need to be implemented before the government can begin to secure more convictions.

Chief among these is that the manpower and funding capacity of the anti-graft agencies be improved.

He said: “It is doubtful if the Federal Government is aware of the limited capacity of the anti-graft agencies. For instance, the ICPC receives an average of 100 petitions daily. The EFCC receives many more petitions from members of the public. Yet, the EFCC leadership inherited a staff strength of 2,173.

“Even with the plan to engage 750 more staff, the EFCC will still have less than 3000 staff. The implication is that with such a few investigators and prosecutors the success rate of the agency is bound to be extremely limited.”

The rights campaigner also noted certain cases where the government appears to have given its critics reason to accuse it of a one-sided anti-graft war.

He accused the Presidency of “casually dismissing serious allegations of corruption and abuse of office by certain public officers”.

Falana said: “When a top army officer was accused of buying properties beyond his legitimate income, did the Code of Conduct Bureau not absolve him without conducting any investigation?

“When the Senate indicted the Secretary to the Federal Government, Mr. Babachir David Lawal, for his involvement in the criminal diversion of about N200 million set aside to cut grass in the camps of internally displaced persons in the northeast region, did the Federal Government not say that he was not given fair hearing?

“Over six months ago, seven judges were arrested after the raid of their official quarters by operatives of the DSS. Only two of the judges have been charged to court, even though the nation was informed by the DSS that the government had watertight evidence of corruption against them.

“It was announced last year that the National Judicial Council had dismissed a judge of the high court of Kano State for allegedly receiving a bribe of N197 million from a litigant and retired a Justice of the Court of Appeal for demanding a bribe of N200 million in an election petition. Why have both of them not been arraigned in court by the Attorney-General of the Federation?”

He urged the government to ensure that there are no sacred cows.

 

Lessons from Georgia

 

The success story of former Soviet Republic, Georgia in its anti-corruption war makes it worthy of emulation by Nigeria.

According to a 2012 World Bank publication entitled: Fighting corruption in public services: chronicling Georgia’s reforms, corruption permeated nearly every aspect of life in the Eurasian country before its 2003 Rose Revolution.

Virtually any government transaction required some amount of bribe for ‘processing’.

Government officials who earned $100 (about N31,568) monthly or less and were banned from holding a second job, found corrupt ways of owning large houses.

Bribes were required to get an international passport, register property, start a business, or build a home. Students were usually required to bribe their way through state university entrance exams, secure good grades and sometimes even degrees.

Only a few paid taxes, their utility bills, with many risking their lives to establish illegal power connections.

The level of corruption abated dramatically, however, after Mikheil Saakashvili became president in 2004.

He instituted drastic anti-corruption reforms, including firing 16,000 traffic police officers and the entire Ministry of Education staff.

Films showing the arrests of senior government officials on corruption charges were broadcast to the public to make clear the seriousness of the effort.

By 2010, Transparency International (TI) had rated Georgia as “the best corruption-buster in the world.”

In January 2012, the World Bank called Georgia a “unique success” of the world in fighting corruption.

On the 2016 Corruption Perceptions Index, Georgia was ranked the 44th least corrupt nation among 175 countries. In 2006, it was 79th.

 

How Georgia did it

 

The World Bank attributed Georgia’s success at fighting corruption to the following factors: “Exercising strong political will; establishing credibility early; launching a frontal assault; attracting new staff; limiting the state’s role; adopting unconventional methods; coordinating closely; tailoring international experience to local conditions; harnessing technology; and using communications strategically.”

Specifically, it notes the importance of a variety of reforms, including the dissolution of the traffic police and the establishment of the Interagency Council for Combating Corruption in 2008.

The council consists of members of various government agencies, civil society groups, and business associations, and is responsible for coordinating, strategising, and monitoring the fight against corruption.

 

Barely two months after its introduction, whistle-blowing has been yielding results. The Federal Government has so far recovered billions in naira and millions in dollars. The most stunning recovery was from former Nigerian National Petroleum Corporation (NNPC) Group Managing Director Andrew Yakubu, who allegedly kept $9.7million and £74,000 in a fireproof safe in a community in Kaduna State. Is the policy sustainable without the National Assembly passing a law to support it? Lawyers suggest ways to strengthen the policy. ROBERT EGBE reports.

IT sounds incredible. But in just two months, with its whistle-blowing policy, the Federal Government has recovered $151 million, N8 billion, $9.2 million and £74,000. When the policy was introduced, many probably never gave it a chance. Now, the recovery of this huge cash has left mouths agape.

Aside being a tool to strengthen the anti-corruption war, two things stand the policy out.

It provides the government an opportunity to raise cash by recovering loot it had no knowledge of; and it gives the whistle-blower access to substantial financial reward for exposing crime.

The Federal Executive Council (FEC) approved the policy last December 21.

The policy’s legislative counterpart, Whistle-Blower Protection Bill 2016, passed the second reading on the floor of the Senate last October 20.

The Bill is one of the five proposed laws sought to be employed by President Muhammadu Buhari as weapons in the fight against corruption.

Others are the Office of the Financial Ombudsman Bill 2015, National Convicts and Criminal Records Bill 2015, Electronics Transactions Bill 2015, and the Nigerian International Financial Centre Bill 2015.

The 2015 version of the Whistle-Blower Protection Bill was one of the 46 bills that the Seventh Senate passed into law within 10 minutes on the eve of the end of its tenure in 2015. They were not signed into law by former President Goodluck Jonathan.

Last December 19, Ben Akabueze, Director-General of the Budget Office of the Federation, said the government planned to infuse N258.6 billion from recovered loot in this year’s budget.

Two months into the policy’s implementation, billions have been recovered, according to Minister of Information, Alhaji Lai Mohammed.

On February 12, he listed some of the recovered cash to include $151 million, N8 billion and $9.2 million.

Mohammed said: ‘’When we told Nigerians that there was a primitive and mindless looting of the national treasury under the last administration, some people called us liars.

“Well, the whistle-blower policy is barely two months old and Nigerians have started feeling its impact, seeing how a few people squirrelled away public funds.

‘’Yet, whatever has been recovered so far, including the $9.8million by the EFCC, is just a tip of the iceberg.”

 

How the policy operates

 

The policy, co-ordinated by the Ministry of Finance, requires anyone with information about a violation, misconduct or improper activity that impacts negatively on Nigerians and the government to report it.

According to information on the ministry’s website, the disclosure is expected to be made voluntarily and in good faith, by telephone, e-mail or through “a secure online portal” where the status of the report can be checked.

The subject matter of the report may include mismanagement or misappropriation of public funds and assets (e.g. properties and vehicles), financial malpractice or fraud, collection/soliciting bribes and corruption.

Others are diversion of revenues, fraudulent and unapproved payments, splitting of contracts and procurement fraud (kick-backs and over-invoicing etc.)

The policy assures the whistle-blower of anonymity and confidentiality “to the fullest extent within the limitations of the law,” or full protection if the person chooses to be known.

It states further: “Any  stakeholder who has made a genuine disclosure and who feels that, as a result, he or she has suffered adverse treatment in retaliation should file a formal complaint to an independent panel of inquiry, that shall be set up to handle such complaint, detailing his/her adverse treatment.”

 

The problem of reward

At first glance, the reward for whistle-blowers appears to be attractive: between 2.5 per cent and five per cent, but a closer examination of this provision raises several issues.

According to the ministry, “A whistle-blower responsible  for  providing  the government  with  information  that directly leads to the voluntary return of stolen or concealed public funds or assets may be entitled to anywhere between 2.5 per cent and five per cent of amount recovered.

“To qualify for the reward, the whistle-blower must provide the government with information it does not already have and could not otherwise obtain from any other publicly available source to the government. The actual recovery must also be on account of the information provided by the whistle-blower.”

Thus, for a whistle-blower to be entitled to a reward, the information supplied must prompt the holder of the stolen or concealed public funds or assets to return them to the government voluntarily.

What happens where the information supplied is authentic, but the holder of the loot refuses to give it up voluntarily and the government is only able to recover the loot through litigation or some other means? Does this imply that the whistle-blower will get nothing in this circumstance?

For instance, a Federal High Court in Kano on February 14 ordered the forfeiture to the Federal Government of $9,772,000 and £74,000 recovered from a former Group Managing Director of the Nigerian National Petroleum Corporation (NNPC), Mr. Andrew Yakubu.

The Economic and Financial Crimes Commission (EFCC) said it recovered the money on February 3, from a building owned by Yakubu in Kaduna, following a tip off by a whistle-blower.

If Yakubu fails to overturn the forfeiture order on appeal, does the recovery of the money by judicial means imply that the whistle-blower won’t get any reward?

Similarly, a telecoms firm has gone to court to claim ownership of the N8.4billion traced by detectives to an Ecobank account, following a tip-off from a whistle-blower. Has the court case damaged the whistle-blower’s chances of getting a reward?

Chief Gani Adetola-Kaseem (SAN) suggests that a whistle-blower legislation would make things clearer.

He said: “If the policy is a law, that will make it clearer to people and you can pin the  government or anybody to the provision of the statute. I agree that for that reason, if you have the statute, i.e. an act of the National Assembly duly signed and assented to, it’ll make things clearer.”

Also, the whistle-blower’s information source must also not be a public one that the government has access to. One implication is that there will be little motivation for anyone to draw the government’s attention to the availability of such information.

However, according to the minister, not every whistle-blower appears to be interested in a reward.

Speaking in Abuja, at the inauguration of Human Rights Radio on February 13, he cited a whistle-blower who made a disclosure out of patriotism.

‘’I want to put on record that the fellow through whom we recovered N1 billion in an account told us he does not want any commission from the government and that that is his contribution to the country.

‘’But, I can assure you that we are not going to renege on our promise to give appropriate commission to anyone who gives us information that leads to recovery of money through this policy,‘’ Mohammed said.

 

Protection of whistle-blowers

 

How will whistle-blowers be protected? The policy does not specify. It merely states: “Any stakeholder who whistle-blows in public spirit and in good faith will be protected, regardless of whether  or  not  the  issue raised is upheld against any party.”

It states further: “Any  stakeholder  (internal  or  external) who has made  a genuine disclosure  and who feels that, as a result, he or she has suffered adverse treatment in retaliation should file a formal complaint to an independent panel of inquiry, that shall be set up to handle such complaint, detailing his/her adverse treatment.

“If it appears that there are reasonable grounds for making the complaint, the responsibility will be on the party against whom the complaint of adverse treatment has been made to show that the actions complained of were not taken in retaliation for the disclosure.

‘’Where it is established that there is a prima facie case that a whistleblower has suffered adverse treatment (harassment, intimidation or victimisation) for sharing his/her concerns with the ministry, a further investigation may be instituted and disciplinary action may be taken against the perpetrator in accordance with the public service rules/other extant rules and a restitution shall be made to the whistle-blower for any loss suffered.”

The above appears to suggest that the policy is more concerned with stepping in after the whistle-blower has already suffered adversity as a result of his disclosure. Thus, there is really no protection from harm for the whistle-blower.

 

Danger of inadequate protection

All over the world, examples abound of whistle-blowers suffering harm or adversity following their disclosure of criminal acts by others.

 

Nigeria

On May 22, 2015, Mr. Aaron Kaase, a Principal Administrative Officer (Press and Public Relations) of the Police Service Commission (PSC) complained to the EFCC, as well as the Independent Corrupt Practices and other Related Offences Commission (ICPC), alleging N275 million fraud against the PSC.

The ICPC investigated and cleared the chairman of the PSC, Mr Mike Okiro, of any criminal infraction.

It was, however, reported that Akaase was suspended indefinitely without salaries. He also allegedly faced threats to his life and family daily.

Also, last Wednesday, the University of Ilorin (UNILORIN) management suspended two lecturers for alleged “insubordination and causing disaffection within the university’’.

But the duo alleged that they were being victimised for exposing corruption in the institution.

 

South Africa

On March 14, 2009, Moss Phakwe, an African National Congress (ANC) municipal councillor was assassinated.

He and a colleague, Alfred Motsi, had attempted to expose corruption in the Municipality and delivered evidence to ANC Secretary-General Gwede Mantashe and to the Office of the South African President.

Another meeting took place with Co-operative Governance Minister Sicelo Shiceka in Rustenburg, attended by Phakwe, Motsi and former Rustenburg mayor Matthew Wolmarans on March 12, 2009. Phakwe had spoken last and handed his dossier to Shiceka.

Before he did so, he had looked at Wolmarans and said: “Hate me, but don’t hurt me.”

Two days later, early in the evening of 13 March, 2009 Phakwe’s body was found slumped over the steering wheel of his car with two bullet wounds.

On July 17, 2012, Wolmarans was convicted and jailed for 20 years for Phakoe’s murder.

 

United States of America

In 1996, Marsha Coleman-Adebayo, a former senior policy analyst for the United States Environmental Protection Agency (EPA), filed complaints alleging that a company from the United States was mining vanadium in South Africa and harming the environment and human health.

The EPA did not respond, and Coleman-Adebayo reported her concerns to other organisations. Subsequently, the EPA refused to promote her and she filed a suit against the agency, alleging racial and gender discrimination.

On August 18, 2000, a federal jury found EPA guilty of violating her civil rights on the basis of race, sex, colour and a hostile work environment, under the Civil Rights Act of 1964. Her experience inspired passage of the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002 (No FEAR Act).

 

India

In October 2005, Shanmughan Manjunath, a former manager at Indian Oil Corporation Ltd (IOCL), spoke against adulteration of petrol. He was shot dead on November 19, 2005, allegedly by a petrol pump owner from the state of Uttar Pradesh

 

Prevention of abuse

 

One of the reasons the bill failed to fly in the sixth and seventh Senate was because of the fear that it could be used as a tool for witch-hunt.

It was also argued that the bills did not make provision for malicious and false whistle blowing.

So, what happens to a whistle-blower whose allegation is found to be false, malicious and hateful, thereby damaging someone’s reputation?

The policy seeks to prevent abuse by referring false disclosures to law enforcement agencies. It also does not stop aggrieved persons from seeking damages for defamation.

It states: “A  first  level  review  will  always  be  carried  out  to determine  credibility  and  sufficiency  of information  received. If you report false or misleading information, it will be referred to the enforcement agents for investigation and possible prosecution.’’

 

Lawyers urge National Assembly to pass bill into law

 

Lawyers are united in their support for the policy. They suggest that passing it into law would ensure its sustenance.

Seyi Sowemimo (SAN) said: “It is important that it should have legal backing because the policy is also supposed to offer some protection to those who do the whistle-blowing, so that no adversity will come to them and then, of course, I expect that there will be some reward for those who engage in the whistle-blowing.

“So, it’ll help if there’s some legal backing to assure people that yes, this money will come and, really, in a country like Nigeria, if we want this kind of policy to be sustained, it is better to pass it as a law, so that it won’t depend on whether the man who is at the helm of affairs is interested or not in pursuing that policy. It will be law, it will be binding on anybody including the government and as a matter of policy. The National Assembly should not waste time in passing that legislation.”

The Chairman of the Nigerian Bar Association Ikorodu Branch, Levi Adikwaone, said a legislation would offer greater protection for the whistle-blower.

He said: “For the practice of whistle-blowing to be successful, steps must be taken to protect the whistle-blower. The corruption in Nigeria makes it difficult for whistle-blowing policy to be an effective weapon in the hands of the people to assist the government.

“At the University of Ilorin, two lecturers are suffering because of whistle-blowing. They exposed corrupt practices allegedly committed by the management of the school and the next thing is they were dealt with. Now, what is their succour, their fate?

“So, if we have whistle-blowing as a policy, there should be laws to back it up, so that if anybody should expose a crime, such citizen must never suffer on account of that and if that citizen suffers as a result of that, there must be compensation. There should be an enabling environment to ensure that the prospective whistle-blower enjoys protection.”

Malachy Ugwummadu, president of the Committee for the Defence of Human Rights (CDHR), hailed the policy’s implementation as a “direct response to the frustrating and debilitating state of affairs and corruption in Nigeria. It is reported that the huge amounts already recovered from various private homes came from just three whistle blowers.

“Thus, what changed that the government could recover such amounts without a single arrest or prosecution? Two things: first, the percentage reward incentive attached to any credible information and second, the security of the information and informant. With every policy in Nigeria, emphasis should now be placed on strategies to prevent the abuse of such information.

“In effect, it is a welcome development. A country that has comprehensively enacted an Administration of Criminal Justice Act (ACJA) 2015 which expressly provides for plea bargain, parole system, community/suspended sentencing, etc. is gradually moving away from punishment focused criminal justice system to recovery/restitution driven system,” Ugwummadu said.