Generally, in party politics, there is only one thing worse than being badly talked about; that is not being talked about at all. Every political party needs the oxygen of publicity to stay afloat and maintain its relevance. Conversely, for an anti-corruption agency such as the Economic and Financial Crimes Commission, there is only one thing worse than being loathed by the corrupt elements in society; that is not being feared at all. Such was the position of the agency in this country prior to the appointment of the current acting Chairman of the EFCC, Mr. Ibrahim Mustapha Magu. No one has been more deserving of the coveted position of Chairman of this towering organisation since Ribadu (its pioneer chairman, Nuhu Ribadu) than the current acting Chairman. This remains so despite his own numerous missteps since his appointment. Nonetheless, it is clear to this column that Magu has brought the ‘fear factor’ back into the posture of his office and the organisation itself. How?
In case you missed it, the third all-Africa Anti-Corruption Day took place in Abuja last Thursday July 11, with the theme: “Toward a common position on assets recovery”. The clue to the underlined fear factor is all too glaring; there has been a dramatic and decisive shift in the focus of the EFCC from looters to the loot itself. This is an incredibly welcome development. We are talking about people bent on asset-stripping the state in Africa, the internationally recognised “Politically Exposed Persons” (PEPs). These are essentially, people in various positions of authority and influence over state resources and their associates. It covers almost 90% of looters in the country. In total, they asset-strip the Nigerian state to the tune of $10bn to $50bn annually, and although many are later chased down, caught and prosecuted, 90% of the looted assets are never recovered. The country is haemorrhaging funds as you read, even as the conference conveyed in Abuja.
Let us be frank with each other, the PEPs engaged in various asset-stripping ventures do not give a damn about criminal prosecution, being paraded on cameras, and even going to jail. Cooling off in jail no longer represents deterrence for a typical and determined PEP, whose only drive is accumulation of assets to ensure the protection of their family from any smell of poverty in perpetuity.
It follows, logically, that since the typical PEP fears the loss of their property more than they do their liberty, the EFCC should be supported in its aggressive move towards targeting the loot, whilst retaining the option of a criminal process at the same time. What would be more helpful though is a judicial recognition of PEPs as “trustees”, who hold a “fiduciary” obligation to the state in respect of its resources.
This is something that moves slightly away from the strict principles of the law of trust. It would be an imposition of the onerous fiduciary obligation on PEPs under a “constructive trust” principle. It is a creative use of the law and would mark the first in Africa. It does not require legislation that could become mired in political wrangles of all kinds. It is not something that the EFCC can impose either. It has to come from the judiciary itself. The EFCC’s legal team would need to bring a “test case” before the courts, which would make its way right through to the Supreme Court for final determination. This, itself, could take years to accomplish, but the debate would have started in earnest. For the judiciary to suddenly hold that PEPs are in a position of “constructive trust” vis-à-vis the state in this country would be the equivalent of an earthquake in the judicial firmament. It would place a burden on the PEPs from which there is no escape.
With this route, the EFCC would no longer need to prove a case “beyond a reasonable doubt”, which is the minimum standard required for a criminal conviction. Furthermore, the organisation would no longer need to fish for a predicate crime in order to confiscate stolen assets. Such assets would no longer need to be adjudged to be the “proceeds of crime” necessarily. The PEP would not even need to have committed any offence before they get shoved into the process of “account”. All the PEP would need to have done is to be found to have behaved in a manner inconsistent with their position as a fiduciary. That is a judgement call alone for the anti-corruption agency. It is the equivalent of being convicted of murder in a criminal jurisdiction, with the prosecution weighing the option of capital punishment or life imprisonment. Making a PEP to render account as a fiduciary is that serious. It leaves the prosecuting agency with all the aces. It becomes a case of asset-stripping in reverse. That will teach them.
The EFCC came into operation in 2004, and has been working assiduously on the issue of financial crime, especially those involving PEPs. Although it has recorded more successes than failures, the perception of its effectiveness as an independent and fearless organisation has been called into question time and again. A former state governor not long ago went to attend his invitation by wearing a T-shirt with the inscription: “EFCC here I am”. The ex-governor has since been put through the criminal process, and his lawyers are doing all they can to frustrate, prevaricate and ultimately fight the process to a predictable standstill. As they should, as criminal defence attorneys, I hasten to add.
The FBI, on the contrary, has been in operation since 1908. It has built its well-earned reputation on the altar of fair play and even-handedness. The name of its first Director, J Hedgar Hoover, remains the rallying point for every aspiring leader of the organisation to this day. Magu said in an interview last week that corruption is Nigeria’s greatest problem. This column fundamentally disagrees. Nigeria’s greatest problem is the absence of leadership in almost every facet of our public life. Hoover was acting Director of the FBI before cementing his position in a permanent capacity and stamping his authority on the institution the world knows it to be today. To me, Magu has a unique chance to provide the kind of leadership at the EFCC that will stand the test of time; that will make him a reference point for generations to come. We should all keep our fingers and toes well-crossed.
[Punch]
