Lawyers canvass international collaborations in addressing challenges of money laundering

Lawyers, justices of the various courts and leadership of anti-corruption agencies in the country, last week at the Sheraton Hotel & Towers, Abuja, called for more international jurisdictional collaborations to tackle the problems of enforcement of money laundering and financial crimes legislations and sanctions.

They spoke at the occasion of the 7th annual public lecture organised by J-K Gadzama LLP. The speakers noted that money laundering and financial crimes which often times are connected to terrorism, have assumed enormous international dimension and therefore needs jurisdictional collaborations to nip the challenges at the bud.

Welcoming participants to the annual public lecture, Chief Joe-Kyari Gadzama (SAN) said: “On behalf of J-K Gadzama LLP, I welcome you all to today’s lecture. This event is a continuation of one of the visions that the Firm has been nurturing for a while that is, to contribute to the growth of the legal profession in Nigeria other than by advocacy and litigation for which the firm is renowned. The idea is to put in the public domain, important issues of professional and national importance to instigate debate and actualize ideas for necessary reforms in aid of the legal profession and the Nigerian Legal System. This public lecture is a further tool towards the actualization of the firm’s goals”.

In the opening remarks, Chairman of the Independent Corrupt Practices and other related offences Commission (ICPC), Mr. Ekpo Nta who was chairman of the occasion said:  “Money laundering involves activities to conceal the existence, illegal source, or illegitimate application of income and purposely attempt to make such income legitimate.

A money laundering scheme involves three phases: placement, layering, and integration. In the placement, money is deposited in a financial institution through ‘front operation’ that provides a pseudo-legitimate source for the money.

Next, layering involves a transfer of illegitimate income through international wire transfers across different accounts.

Ekpo Nta said: “Finally, integration is accomplished by reintroducing the funds in legitimate economic activities. Organized crime and money laundering have a special connection due to the technical sophistication and relation to drug trafficking that each holds. Various international regimes have been instituted to suppress money laundering activities, alongside of which law enforcement responses have been devised.

Speaking on the role of enforcement and regulation, the ICPC chair said “Money laundering and financial crimes are activities that are prohibited nationally and internationally. In Nigeria, the Money Laundering Act 2004 (as amended in 2011) makes comprehensive prohibitions to prevent money laundering activities including the financing of terrorism, the laundering of proceeds of a crime, or an illegal act etc.

The sophistication of money laundering and related offences has been growing geometrically to the extent that normal national and international policing could not keep pace and required specialized inter-governmental bodies like the United Nations Office on Drug and Agencies (UNODC), international initiatives like the Stolen Asset Recovery Initiative (STAR) which is a partnership arrangement between the World Bank and the UNODC to reduce or end safe havens for corrupt funds and the laundering of proceeds of corruption and facilitate the systematic and timely return of such stolen assets.

“At the national level, the Economic and Financial Crimes Commission (EFCC) was set up in Nigeria in 2004 as a Specialized Law Enforcement Agency to enforce the Money Laundering Act (2004) as amended in 2011. Laws and regulations also need to rely on specialized enforcement agencies. With respect to crimes with important international dimensions, such as in the case of money laundering additional enforcement issues are proposed at an international level”.

Speaking on the topic: Money laundering and financial crimes: problems of international enforcement, the guest speaker who is also a member of J-K Gadzama LLP, Mr. Aliun Jones QC said: “Modern International agreements concerning the investigation, prosecution and punishment of international or transnational crimes are an attractive display of well thought out and detailed legal commodities. The days are long gone when states could consider, as the privy council did in England in 1984, “All crimes is local” (Maclead V Att Gen for New South Wales [189] AC 455)

“But the practice of individual states in implementing then is patchily, and often falls short because national governments do not have the will, resources, or expertise to deal with them. Sometimes, it seems to me, they simply lack the confidence or courage to implement them.

Jones said: “This irresolution applies both to international crimes and transnational crimes.

International crimes”, torture, war crimes genocides, hostage taking hijacking for example, are those now recognized as crimes against the international community, imposing on all states the obligation to prosecute or extradite offenders found on their territories.

“Progress is slow; three steps forward, two steps back. The determination to enforce pen alties for international crimes varies shifts with the political weather. The enormous progress made by such cases as Pinochet in the House of Lords in the UK received a setback when the “War Against Terror” began. The UN International Court for Rwanda in Tanzania has closed through lack of finance while genocide suspects remain untried.

“Transnational crimes are particularly threatening because they cross international borders but because they are regarded as less grave than international crimes. It is not to be expected that the investigation and prosecution of transnational crimes has been as resolute as it should be, even though corruption and its associated offences such as money laundering is now itself the subject of the detailed UN Convention against Corruption of 2004”.

Mutual Legal Assistance (“MLA”). The Harare Scheme applies to the Commonwealth. UNCAC provides for MLA at Article 46. Applications may be made for mutual legal assistance to the Central Authority, Home Office, United Kingdom for assistance in obtaining evidence; oral evidence in court; freezing and restraint orders; production orders directed to obtaining evidence from banks and accountants; search and seizure under warrant; production of financial information from banks, or investigations by the Serious Fraud Office Guidelines are available from the Central Authority. Decisions may be challenged by judicial review. The case of R (on the application of Sani Abacha v Home Secretary and the Federal Government of Nigeria approved an MLA request and held that fairness did not always require that such a request be made known to the target. Under the proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 it is possible to register and enforce an order for confiscation in the requesting state. (See also Article 54 UNCAC.)”

Mr. Jones examined the forum problem of international enforcement and said: “If a crime can be tried in one or more jurisdictions, where should it be tried?

Striking absence of internationally agreed principles.

International Conventions; torture, hijacking, hostage taking. All contain the maxim “either prosecute or extradite”; “aud dedere, aut judicare”. However there are virtually no mechanisms for determining whether to try in the state where the crime was committed; or where the person is found; or in a third country where the crime had effects. The Pinochet case [1999] A.C. 147 (House of Lords) is an example of a third state application.

The same uncertainty lies in transnational financial crime. Problems with USA. Consider prosecutions connected with Enron, where prosecutions were undertaken of cases having little to do with the USA; eg Berminghan and others v Government of the USA [2007] QB 2007.

What were the principles according to which it was decided to prosecute James Ibori in the United Kingdom and seek his extradition? Simple expedience? There may be intelligible reasons in any one case but what are the principles? Especially where problems arise in confiscation after conviction?

He examined the provisions of The United Nations Commission against Corruption and noted that…

“Particular crimes; corruption and money laundering. The provisions of Chapter 5 of the UNCAC, though often praised as comprehensive, in fact gives wide powers in relation to return to the state in which the assets are confiscated; the state from where the money is stolen is not to be equated with victims of the offence. They owe us an obligation to return funds to a state embezzled from public funds which has successfully applied for a confiscation and enforcement order under Article 55, (registering a judgement), but in all other cases (Article 57 3 (c) the UK will “give priority consideration to returning such property to its prior legitimate owners or compensating the victims of the crime”. Ad hoc, case by case agreements are also possible.

The official Home Office UK Guide to Asset Recovery contains this ambiguous statement.

Mr. Kayode Oladele who represented the EFCC Chairman, Mr. Ibrahim Lamorde, Chief Mrs Victoria O.  Awomolo (SAN), Mr. Garuba Pwul (SAN) discussed the paper and made very commendable contributions to it.

In a chat with The Nation on what informed the topic for this lecture, Chief Joe-Kyari Gadzama (SAN) said: “ Away from several other themes and topics that we have had over the years, we thought that we should beam our searchlight on money laundering and economic rights because it in the front burner.

“It is not just a national problem, but a very crucial global challenge and it appears that the more we talk about it, the more we are into it, the more we embrace it. I feel that a lot of talking has been done, several conferences here and there, by the same token, we felt that this could be an additional platform where the matter could be considered seriously and as God will have it, we happen to have as one of us in our chambers an expert in economic crimes, commercial crimes, extraditions, judicial review,   etc who has agreed to be part of this by being here in Nigeria.

Gadzama (SAN) stated that: “  This is an opportunity that should be utilised and you can see the attendance here today in terms of numbers, in terms of quality and in terms of coming from all works of life and all sheds of opinion to be part of this annual lecture today is unprecedented.

Fielding questions on the factors that militate against efforts to combat money laundering and economic crimes in the country.

“We have a lot of factors that are militating against our efforts, the human factor is a problem because if the character is not there, if the courage is not there to fight it, the fight is going to be wishy washy because when the right people are in the right place, things work but if you have the wrong people occupying exalted positions, you will find that the result will never be positive, the result will always be negative.

Gadzama said: The problems with illicit funds, laundered money, is that it is often used to finance, encourage and support insurgency, terrorism and to bring down the rule of law, to bring down the economies especially in third world countries and to disrupt the financial systems and regulations. You will find out that most of the people accused of laundering money, of participating in corruption are rather being praised and appreciated by the society.

“For instance the James Ibori case, nothing could be done against him in Nigeria, he was arrested, prosecuted and convicted in the United Kingdom (UK) as a result of some criminal offences that were committed even in Nigeria including those committed ion the UK. Many of our former Governors, who have been facing corruption charges, have been facing these charges endlessly. You never can tell when we can get to the Promised Land in terms of actually nipping corruption in the bud. It is indeed a problem that has many dimensions to it.

Gadzama said: “As you can see, the leadership of the two major corruption fighters in this country are here, the chairman of the ICPC is here, the chairman of EFCC is here well represented, the Judiciary is well represented, you can see so many Senior Advocates of Nigeria, you can see members of the general public, representatives of Non-Governmental Organisations and lawyers young and old. This is a problem we see every day and hear about in the mass media yet nothing seems to be happening, where then are we getting it wrong, this is a puzzle that we all have to come together, offer  and proffer solution because it it is endless, that is why this platform is created. Though one does not have the monopoly of ideas, the starting point is that every person should be able to contribute no matter how little.

On how everybody can make this contribution, Gadzama said that we do this by living by example wherever you happen to be, whether in the office, whether in the house, whether in the streets, whether at the conference, whether in the churches, whether in the mosques,   wherever you have to be, you must fight it, you must exhibit effort at fighting corruption, living by example, that is how to do it.

On whether the J-K Gadzama LLP annual public lectures have achieved the objectives for which they were started, Gadzama SAN said: “Yes of course, the vision we had about a decade ago appears to have been achieved and fulfilled because the series of this lecture appears to have succeeded over the years with this unprecedented attendance to this one which is the seventh in the series. You can see that over the years, we have been able to discuss over these years different topics, different themes at different locations some in Lagos and some in Abuja with different speakers from both within the country and outside the country.

Over the years, the Firm has organized annual lectures touching on diverse areas of the law and polity with today’s lecture being the 7th in the series. Our maiden lecture held in Abuja in 2008 with the theme: “World Trade Organisation (WTO) – wot way for the legal profession in Nigeria.

Our second public lecture was held in collaboration with the Infrastructure Concession Regulatory Commission (ICRC), at the Nigerian Institute of International Affairs, Victoria Island, Lagos. It was themed: “Infrastructure Finance in transition economies: opportunities and challenges.

The third public lecture held in 2010 at Transcorp Hilton Hotel in Abuja. The theme was “Constitutionalism, good governance and development”.

Our fourth public lecture, which held in 2011 at the Lagos Osun Hall of the Transcorp Hilton Hotel Abuja, had the theme: Free and fair elections – myth or reality.

Our fifth public lecture held in 2012 at the Four Points by Sheraton Hotel, Victoria Island, Lagos, with the theme: “Nigeria in the year 2012, the vision of a cashless economy”. Our sixth public lecture held in 2013 in collaboration with the Nigerian Bar Association (NBA) Abuja branch to promote public discourse among lawyers. It had the theme “Security Challenges in a democratic Nigeria: The way forward”.