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16 December 2019
On 29 October 2019 the Asset Tracing, Recovery and Management Regulations 2019 – which were issued by the federal attorney general on 24 October 2019 – came into effect. They replaced the existing Proceeds of Crime Regulation 2012, with effect from 31 October 2019.
The regulations set out procedures for all law enforcement and anti-corruption agencies – which are all supervised by the Attorney General's Office – to ensure the effective coordination of:
The regulations apply to illegally acquired assets and the proceeds of crime by a person investigated or prosecuted in Nigeria.
The duties of the Attorney General's Office include:
Under the regulations, the Attorney General's Office will conduct all forfeiture proceedings, both conviction and non-conviction based. Ongoing conviction-based forfeiture proceedings must be transferred to the office and it has the power to take over cases relating to seized, confiscated and forfeited assets.
Pursuant to the regulations, the attorney general must establish a structure for the transparent management of forfeited assets, which should include a committee comprising at least 14 separate government agencies and other organisations.
Further, the regulations state that all proceeds from the disposal of final forfeited assets must be paid into the federal government's asset recovery account with the Central Bank of Nigeria. In addition, the regulations state that funds relating to forfeited assets which belong to other tiers of government (ie, state or local governments, as opposed to the federal government) must be paid into the interim forfeiture recovery account with the Central Bank of Nigeria. Proceeds from perishable assets must also be paid into the interim forfeiture recovery account.
Within 15 days of receiving confirmation of the proceeds from the Central Bank of Nigeria, the attorney general must inform the finance minister. Within 30 days of being informed, the finance minister must arrange for the proceeds to be transferred into the consolidated revenue account for necessary action. Moreover, within 45 days of being informed that funds which belong to another tier of government have been deposited into the interim forfeiture recovery account, the finance minister must arrange for the proceeds to be transferred to the relevant tier of government.
The regulations instruct the Attorney General's Office and the Ministry of Finance to negotiate no less than 30% of any funds recovered on behalf of other tiers of government as administrative charges of the federal government.
The regulations conclude with a provision instructing all existing bodies which exercise functions relating to the management of forfeited assets to end such management. Handover notes had to be submitted to the Attorney General's Office by 27 November 2019.
While the apparent intentions behind these regulations appear to be sound, the regulations are poorly drafted and do not appear to have been properly thought through. For example, it is unclear by which method monies in the consolidated revenue fund, or any other government fund, may be lawfully withdrawn. Section 80 of the Constitution states that monies in the consolidated revenue fund may be withdrawn only by an appropriation act or, in the case of other government funds, by an act of the National Assembly. It is uncertain whether these regulations (ie, subsidiary legislation) may properly direct the finance minister to act. Moreover, it does not appear right for the federal government to charge a 30% administrative charge on monies received on behalf of other tiers of government, even assuming that such a charge is lawful.
Given that there is no data on the workings of the Proceeds of Crime Regulations 2012, which these new regulations replace, it will be interesting to see whether these regulations achieve their intended aims.
For further information on this topic please contact Babajide Oladipo Ogundipe at Sofunde Osakwe Ogundipe & Belgore by telephone (+234 1 462 2502) or email (firstname.lastname@example.org). The Sofunde Osakwe Ogundipe & Belgore website can be accessed at www.sooblaw.com.
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