The Attorney General of the Federation and Minister of Justice, Abubakar Malami, must scrap the new Asset Tracing Recovery and Management Regulations rule, Human and Environmental Development Agenda (HEDA Resource Centre) has said.
The prominent anti-corruption group said the new regulation was like pulling the carpet off the feet of anti-corruption agencies established by Acts of Parliament, people voted by Nigerians to represent their interests.
HEDA said the new regulation from the Ministry of Justice attempts to substitute legal democratic institutions with individual political whims and caprices. It said the Ministry should not give the impression that it is desperate to take sides with corrupt officials and institutions.
In a petition addressed to the Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami, the foremost anti-corruption group said the new rule was a clog in the wheel of the country’s anti-corruption drive. It urged the Justice Ministry to immediately scrap the regulation, adding that since the rule was made, HEDA has been besieged with complaints from international organisations whose confidence in Nigeria’s renewed effort against corruption is troubled due to the new regulation. The petition was signed by HEDA Chairman, Mr Olanrewaju Suraju.
The office of the Attorney General of the Federation on the 31st October 2019 stirred a new debate on corruption when it issued new guidelines on the procedures anti-corruption agencies must adopt in the bid to manage and dispose of recover stolen wealth or illicit assets. A wave of criticisms continue to trail the directive with anti-corruption groups saying it was an attempt to thwart the efforts of the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offenses Commission (ICPC), all other Anti-Corruption Agencies (ACAs) and Law Enforcement Agencies (LEA).
The Assets Tracing Recovery and Management Regulations 2019 official gazette stated in Section 1 that the objective was to prescribe procedures for all Law Enforcement Agencies (LEAs) and Anti-Corruption Agencies (ACAs) to ensure effective coordination of the investigation of illegally acquired assets and proceeds of crime, tracing and attachment of assets and proceeds of crime, the seizure and disposal of assets and proceeds of crime, and the recovery of stolen assets within and outside Nigeria.
But critics insist the regulation is an attempt to whittle down the EFCC and ICPC powers.
HEDA said in the petition “We hold the stance with respect to the Asset Tracing, Recovery and Management Regulations 2019 that it is overbearing and outreaching and will most certainly result in clashes between the office of the Attorney General of the Federation and the powers reposed in the LEAs and the ACAs.”
HEDA said the National Assembly enacted laws for the smooth operations of the LEAs and ACAs. The Economic and Financial Crimes Commission (EFCC) Act 2004 and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act 2000 made for the proper procedures for the custody of interim and final forfeiture and whose/where the custody of the forfeited properties. Section 30, 31 (1-3) of the EFCC Act makes for the procedure for the proper disposal of the seized assets.
It noted that Section 31(2) provides that upon receipt of the final order, the Secretary of the Commission shall take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof shall be paid into the Consolidated Revenue Fund of the Federation. Also, Section 37, 38 and 45 of the ICPC Act gives the Chairman and Officers of the Commission the powers to seize assets. It observed that Section 35 -37 of the Trafficking in Persons (Prohibition) Law and Enforcement and Administration Act, 2015 states that whereupon the receipt of a final order, a person is convicted the Director-General shall take steps to dispose of the property and that the proceeds shall be paid into the Victims of Trafficking Trust Fund.
Section 90-91 of the Immigration Act also states that upon conviction of an offense under the Act or under any relevant Law, the Nigerian Immigration Service shall apply to the Court for a final order of forfeiture and that cash assets be forfeited to the Federal Government Consolidated Revenue Account.
Suraju wrote “It is important to note that each LEAs and ACAs have in their enabling statutes the control and management of assets seized. National Drug Law Enforcement Agency Act, 1989 in Section 38 also states that the Secretary to the Agency is saddled with the responsibility of supervising the auction of any forfeited or seized property and then the proceeds are to be paid into the Consolidated Revenue Account.”
The group said it is quite clear that the legislators factored in the appropriate channel for the final disposal of forfeited assets citing that provisions of Sections 5 – 12 of the Assets Tracing, Recovery and Management Regulations, 2019 as completely usurped and transfers the powers vested in the LEAs and ACAs to the Attorney General of the Federation.
According to HEDA “It is important to note at this juncture that Section 1(2) of the EFCC Act, 2004 states that the EFCC is the designated Financial Intelligence Unit in Nigeria charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria. Similarly, Section 3(4) of the ICPC Act 2000 also states that the ICPC shall in the discharge of its functions under the Act, not be subject to the discretion or control of any other person or authority”
The group said the commencement clause of the Regulations states that the powers to make the Regulations were solely derived from the enabling statutes of the LEAs and ACAs.
“We must humbly hold that these powers do not override the provisions of the enabling statutes establishing the powers of the LEAs and ACAs and the powers referred to in the Commencement Clause of the Regulations merely presupposes discretion as against the mandatory powers vested in the LEAs and ACAs as stated above.
“The enabling statutes of the LEAs and ACAs vests in them the powers to carry out their activities and these enabling statutes are made by the National Assembly. The National Assembly is vested with sole powers to make laws according to Section 4 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and Section 1 of the Constitution declares the supremacy of the Constitution, therefore we make bold to state that these Regulation trespasses into the scope of powers vested in National Assembly and amounts to disregarding the supremacy of the Ground Norm. The powers as stated in the Commencement Clause of the Regulations cannot override the powers vested in the LEAs and ACAs being Acts of the National Assembly” HEDA noted.
The anti-corruption group said the Assets Tracing, Recovery and Management Regulations, 2019 is merely a duplicity of laws and adds no solution, harmony or progress but further rigidity and dilemma to the implementation of the functions of the LEAs and the ACAs by prescribing sanctions for non-compliance as seen in Section 14 of the Assets Tracing, Recovery and Management Regulations, 2019.
It is trite law according to HEDA, that the Act of the National Assembly supersedes any other law, it is on this basis that we demand the immediate cancelation and nullification of the Asset Tracing, Recovery and Management Regulations, 2019 within 14 days from the receipt of this letter as the Regulations are ultra vires and a complete derailing from the powers vested in the office of the Attorney General of the Federation as in Section 174 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended); as a complete violation of the rule of law and principles of separation of power; and abuse of powers vested in the office of the Attorney of the Federation under section 43 of the EFCC Act, 2004 and also Section 50 of the National Drug Law Enforcement Agency Act, 1989.
“We have the mandate to promote the interest of the public and in the event that our demand is not acceded within 14 days of the receipt of this letter, we shall without further recourse to your office institute an action in court to demand the enforcement of the Constitution”, said HEDA, adding that the public expects administrative coordination of the management and disposal of proceeds of crimes, in the absence of National Assembly’s passage of the much-expected proceeds of Crimes bill, within the possession of anti-corruption agencies and not the usurpation of their powers.
It said the Attorney General and his office is also expected to use the opportunity of the new leadership at the National Assembly to facilitate expeditious passage of a proceeds of Crime Bill before the Assembly since the 8th Assembly
