The Asset Tracing, Recovery and Management Regulations 2019 recently came into effect, replacing the existing Proceeds of Crime Regulation 2012. The regulations set out procedures for all law enforcement and anti-corruption agencies – which are supervised by the Attorney General's Office – to ensure the effective coordination of the investigation of illegally acquired assets and the proceeds of crime, among other things.
The High Court of England and Wales recently granted claimants in an arbitration leave to enforce an award against the Nigerian Ministry of Petroleum Resources. The media attention surrounding the decision prompted the Nigerian government to respond in a manner that has been described as unusual. One thing is clear: allegations of involvement in fraudulent conduct in matters relating to government contracts in Nigeria should not be unexpected.
Throughout August 2019 the Nigerian media heavily reported on the US government's actions against Nigerian nationals who have been accused of committing various acts of fraud. Of particular note is the arrest of a successful Nigerian entrepreneur and the US Department of Justice's recent federal grand jury indictment against 77 named and three unnamed individuals reported to be Nigerians.
During Federal Attorney General Abubakar Malami's recent confirmation appearance before the Senate he was asked why the administration had failed to comply with court orders and responded that they were not in the public interest. Although heavily criticised, Malami's statements are unsurprising, given how he used Executive Order 6 in his first term to indiscriminately prevent persons not accused of wrongdoing from accessing bank accounts without recourse to the courts.
After years of inaction and many questions as to why the Nigerian authorities have done nothing to pursue Nigerian wrongdoers in a 21-year corruption case involving oil giant Shell Nigeria Ultra Deep Limited and Italian company ENI SpA, it appears that the Nigerian authorities have finally decided to pursue criminal proceedings against Nigerian parties. In April 2019 the Abuja High Court issued orders for the arrest of former Petroleum Minister Dan Etete Etete and Attorney General Mohammed Bello Adoke.
Recent reports about developments in an ongoing corruption case in Italy, which alleges corruption in Nigeria by oil giants Royal Dutch Shell and Italian company Eni, have increased speculation as to whether any meaningful proceedings relating to the matter will ever be brought in Nigeria. There appear to be numerous issues in respect of which inquiries might be undertaken.
In 2014 $321 million which had been amassed in Luxembourg by Nigeria's former head of state was frozen. Although the government did not need to enlist external counsel to recover the money, the federal attorney general engaged local lawyers, whose only qualifications were alleged to have been that they had both worked with the attorney general while he was legal adviser to President Buhari's political party. This is just one in a series of embarrassing situations involving Buhari's government.
Although corruption in the ranks of Nigerian judicial officers has long been considered an issue, the authorities have been accused of lacking any genuine desire to address the problem. Although the National Judicial Council occasionally penalised judges, no judges were prosecuted. All that changed in 2016, when a number of Nigerian judges were arrested on suspicion of corruption. More recently, the Court of Appeal dismissed corruption charges against another Federal High Court judge.
When the Federal Ministry of Finance's new whistleblowing programme was announced, an issue was identified with regard to the lack of clarity around how rewards will be calculated. Following this, there has recently been significant controversy surrounding a reward which may have been paid to an informant following the recovery of approximately $43 million under the programme. If the matter proceeds to litigation, it may provide some indication as to how the programme is actually being implemented.
Following media reports accusing the Nigerian Securities and Exchange Commission director general and two other senior officials of serious financial impropriety, the Federal Ministry of Finance recently announced the suspension of the accused officials pending investigations into the accusations. Regardless of whether the allegations are true, the commission has come under pressure in the past two years due to an increase in the number of market crises, which critics have attributed to failures in oversight.
President Buhari recently signed a number of agreements with the United Arab Emirates concerning extradition, the transfer of sentenced persons and mutual legal assistance. This is one of the first concrete steps that Buhari has taken to combat corruption and money laundering since taking office. According to reports, the government is seeking to use these agreements to effect the seizure of real estate in Dubai which allegedly belongs to the former petroleum minister.
The Economic and Financial Crimes Commission recently succeeded in obtaining two final forfeiture orders of property without there having been a prior conviction. It will be interesting to see how these orders are addressed if any contested applications for non-conviction-based forfeiture orders come before the courts, as neither case set out the grounds that empower the courts to make such orders.
The federal government continues to issue reports regarding the success of its whistleblower programme. As such, it was no real surprise when the Economic and Financial Crimes Commission recently reported the discovery of $43.4million, £27,800 and N23.2million in cash following a tip-off. However, despite the reports of seizures resulting from information provided by whistleblowers, no reports have suggested that anyone has received any part of the recovered monies.
In October 2016 a number of senior judges from all levels of Nigeria's superior courts of record (ie, the High Court, the Court of Appeal and the Supreme Court) were arrested. Of the seven judges arrested, only two have been charged to date. Of these two, one was recently discharged following a no case submission by his counsel. This reversal must have been embarrassing for the government, given the manner in which it conducted the operation to arrest the judge.
The whistleblower policy unveiled at the end of 2016 is already producing results. The government has recovered a significant amount of stolen funds, including the amount recovered from a property owned by the former group managing director of the Nigerian National Petroleum Corporation. This must have been embarrassing for the government, as money laundering charges against the official were withdrawn in 2016. The basis of the decision to withdraw those charges must now be examined.
The first convictions were recently handed down in a series of prosecutions commenced due to widespread fuel subsidy fraud, which reportedly cost the treasury more than $6 billion. Investigations into the fraud commenced at the start of 2012, following the discovery of a discrepancy between the amount of motor fuel subsidised by the government and the country's actual consumption.
The Federal Ministry of Finance recently released details of its new whistleblowing programme, through which it aims to obtain information deemed to be in the public interest concerning the violation of financial regulations, theft, the mismanagement of public funds and assets and financial malpractice and fraud. Although it is still early days, the likelihood of the initiative achieving any of its objectives is low.
A number of Nigerian judges, from the Supreme Court to the high courts, have been arrested on suspicion of engaging in corruption. Observers of the Nigerian judiciary will not be greatly surprised by the allegations: the corruption that the Goodluck Jonathan government has been accused of also includes allegations of serious judicial misconduct. The president of the Nigerian Bar Association has condemned the arrests as a "Gestapo-style operation".
The Economic and Financial Crimes Commission is reportedly investigating around 250 companies and individuals in connection with the alleged misappropriation of funds by Sambo Dasuki. Under Nigerian money laundering legislation, the banks through which the funds were moved were obliged to take a number of steps to enable law enforcement agencies to monitor the movement of funds and prevent misappropriation.
The Criminal Justice Administration Act came into force in May 2015 and was intended to introduce a criminal justice system that promotes efficient management of criminal justice institutions and protects society from crime. However, the media continues to be dominated by stories involving the prosecution of prominent political members that demonstrate that the act has – at least until recently – had no significant effect.