The Senate on Wednesday, 23rd March 2022, considered and approved the report of its Joint Committees on Judiciary, Human Rights & Legal Matters and Anti-Corruption & Financial Crimes on the re-committal of clause 74 of the Proceeds of Crimes (Recovery and Management) Bill, 2022 (SB. 553 & SB. 645). The bill seeks to provide an effective legal and institutional framework for the recovery and management of the proceeds of crime, as well as the restraint, seizure, confiscation and forfeiture of property derived from unlawful activities. It will be recalled that on 15th March 2022, the Senate rescinded its decision on clause 74 of the bill, which provides for “Burden of Proof”. The clause in the original version of the bill places the burden of proof on a defendant charged with an offence under this bill and provides as follows:
“Subject to the provisions of this Act, the defendant in any proceedings under this Act bears the burden of proving that he is the legitimate owner of the assets suspected to be proceeds of crime or derived from unlawful activity or that assets is of legitimate origin and is not proceeds of unlawful activity.”
However, the version of this clause as initially passed by the Senate provides that:
“The burden of proof shall be on the investigating agencies and there shall be a conviction before the property can be finally seized or forfeited to the Federal Government of Nigeria.”
This version had placed the burden of proof on the investigating agencies and required a conviction of a defendant before any property of the defendant which is subject matter of a case instituted pursuant to this bill can be seized or forfeited to Federal Government. However, the Senate after passing the bill, rescinded its decision on clause 74 and referred it to its Joint Committees on Judiciary, Human Rights & Legal Matters and Anti-Corruption & Financial Crimes for further legislative action. The basis for rescission being that the version of the clause passed was in contravention to Article 12(7) of the United Nations Convention against Transnational Organised Crime (UNTOC) which provides that:
“State parties may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of the judicial and other proceedings.”
The Joint Committees went on to meet with investigating agencies in order to make a decision as to the version of clause 74 to be included in the bill. According to the report of the Joint Committees presented at Senate plenary on Wednesday, 23rd March 2022, the investigating agencies submitted that the implication of maintaining the version of the clause passed by the Senate is the fear of inclusion of Nigeria among countries in the Financial Action Task Force (FATF) Grey List, which will mean increased scrutiny for Nigeria by the Task Force. The agencies also assured that maintaining the original version of the clause is in the best interest of the country and committed not to abuse the powers conferred on them by the provision.
The Joint Committees in their report stated among others, that:
- The original provision of clause 74 which places the burden of proof on the defendant is in line with global best practices.
- Requiring a criminal conviction to be established before seizure and forfeiture of assets derived from unlawful activities, is against the intention of the bill and not in conformity with similar legislations in other jurisdictions.
- Maintaining the version of clause 74 passed by the Senate will undermine Nigeria’s commitment and obligation to the UNTOC, to which it is a signatory.
- One of the recommendations of FATF on non-conviction based asset forfeiture is that confiscation and provisional measures should be such that enable competent authorities to freeze or seize and confiscate assets without prejudice to the rights of bona fide third parties.
- One of the intendments of clause 74 (original version) is to ensure recovery of proceeds of crime with or without conviction.
Following from the presentation of this report, and the recommendation of the Joint Committees that the Senate pass the original version of clause 74 of the bill, the Senate approved the report of the Committees and passed the clause accordingly.
This new position of the Senate on clause 74 of the Proceeds of Crime bill is worrisome. The position of Common law (from which Nigerian law developed) on burden of proof is that a person who makes an allegation has the responsibility to prove it. This principle is also embedded in section 131of the Evidence Act 2011. Also, one of the principles of fair hearing, as contained in section 36(5) of the 1999 Nigerian Constitution provides that a person who is charged with a criminal offence shall be presumed innocent until proven guilty. The original version of clause 74 of the bill which the Senate has just passed, places the burden of proof on the defendant and this contravenes these principles. Article 12(7) of the UNTOC cited as the basis for adopting this version of the clause is suggestive and subject to the principles of domestic law in each country. Nigerian criminal law places the burden of proof on the prosecution, in addition to requiring that the prosecution proves its case against a defendant beyond reasonable doubt. In the light of this, the version of this clause as adopted by the Senate is inconsistent with Nigeria’s domestic law.
In addition to breaching the fundamental rights of individuals, the requirement for a defendant to bear the burden of proof and the provision for non-conviction based asset forfeiture to the Federal Government can be tools of abuse in the hands of investigating agencies, as they can apply these provisions arbitrarily or as a witch-hunting strategy against perceived enemies of a government in power.