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Terrorism Act, Proceeds of Crime Act 2022 Raise Concerns

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The Terrorism (Prevention and Prohibition) Act 2022 repealed the Terrorism Act 2011, the Terrorism (Amendment) Act 2013 and provides an enhanced framework to prevent, prosecute and punish acts of terrorism. However, some of its provisions raise concerns. Section 64 of the Act provides for investigation and search of a premises by the officer of a relevant agency without warrant, in a case of verifiable urgency, threat to life, or in order to prevent the commission of an offence under the Act. Under this provision, a search may commence while a warrant is being sought. While the rationale for this course of action may be valid, enforcement may still be subject to abuse. It is important to objectively define situations that fall under the purview of this provision for clarity.

Section 66 provides for the detention of a suspect for a terrorism-related offence for a period of 60 days using an order obtained through an ex-parte application to the Court. Such detention is intended to last until the conclusion of investigation and prosecution of the matter. It further provides for a renewal of the detention period but requires the involvement of the Attorney-General of the Federation by the relevant enforcement agency for renewal. This provision appears to be in contravention of section 35(4) and (5) of the 1999 Nigerian Constitution, which provide that a person arrested and detained for a criminal offence be charged to court within a reasonable time (1 to 2 days). It also raises the issue of the possibility of arbitrariness by enforcement agencies.

Section 56 of the Act empowers the Registrar General of the Corporate Affairs Commission or the Director of the Special Control Unit against Money Laundering (SCUML) to sign a certificate refusing or revoking  the registration of a non-profit organisation based on criminal intelligence reports, grounds of national security or reasonable suspicion of terrorist links. Although the affected organisation may apply to the Court for a review of this decision, the provision still raises concern about the possibility of abuse by the government.

The Proceeds of Crime (Recovery and Management) Act 2022 generally provides the legal and institutional framework for the government to recover and manage proceeds derived from unlawful activities, as well as unclaimed properties reasonably suspected to be proceeds of crime. A provision of concern in the Act is section 74, which places the burden of proof on a defendant in proceedings under the Act, to prove that he or she is the legitimate owner of goods suspected to be proceeds of crime or derived from unlawful activity, or to prove that the assets are of legitimate origin. This provision appears to contradict section 36(5) of the 1999 Constitution which provides that a person who is charged with a criminal offence shall be presumed innocent until proven guilty. The position of Nigerian law on burden of proof is that a person who makes an allegation has the responsibility to prove it. This principle is embedded in section 131 of the Evidence Act 2011.

The rationale of placing the burden of proof on the defendant in section 74 of the Terrorism Act 2022, appears to be the Nigerian government expanding the scope of liability and basing it on the need to conform with Article 12(7) of the United Nations Convention against Transnational Organised Crime (UNTOC) which provides that:

States 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.

However, it is clear that this provision is merely advisory and cannot override the principles of natural justice and rule of law recognised in the Nigerian Constitution.