{"id":2566,"date":"2022-03-25T12:11:11","date_gmt":"2022-03-25T12:11:11","guid":{"rendered":"https:\/\/placng.org\/Legist\/?p=2566"},"modified":"2022-03-25T15:34:12","modified_gmt":"2022-03-25T15:34:12","slug":"proceeds-of-crime-bill-senate-imposes-burden-of-proof-on-defendant","status":"publish","type":"post","link":"https:\/\/placng.org\/Legist\/proceeds-of-crime-bill-senate-imposes-burden-of-proof-on-defendant\/","title":{"rendered":"Proceeds of Crime Bill: Senate Imposes Burden of Proof on Defendant"},"content":{"rendered":"\n<p>The Senate on Wednesday, 23<sup>rd<\/sup> March 2022, considered and approved the report of its Joint Committees on Judiciary, Human Rights &amp; Legal Matters and Anti-Corruption &amp; Financial Crimes on the re-committal of clause 74 of the Proceeds of Crimes (Recovery and Management) Bill, 2022 (SB. 553 &amp; 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 15<sup>th<\/sup>\u00a0 March 2022, the Senate rescinded its decision on clause 74 of the bill, which provides for \u201cBurden of Proof\u201d. 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: <\/p>\n\n\n\n<p><em>\u201c<\/em><em>Subject to the provisions of this Act, the defendant\nin any proceedings under this Act bears the burden of proving that he is the\nlegitimate owner of the assets suspected to be proceeds of crime or derived\nfrom unlawful activity or that assets is of legitimate origin and is not\nproceeds of unlawful activity.<\/em><em>\u201d<\/em><\/p>\n\n\n\n<p>However, the\nversion of this clause as initially passed by the Senate provides that: <\/p>\n\n\n\n<p><em>\u201c<\/em><em>The burden of proof shall be on the investigating\nagencies and there shall be a conviction before the property can be finally\nseized or forfeited to the Federal Government of Nigeria.<\/em><em>\u201d<\/em><\/p>\n\n\n\n<p>This version had placed the burden of proof\non the investigating agencies and required a conviction of a defendant before\nany property of the defendant which is&nbsp;\nsubject matter of a case instituted pursuant to this bill can be seized\nor forfeited to Federal Government. However, the Senate after passing the bill,\nrescinded its decision on clause 74 and referred it to its Joint Committees on Judiciary, Human Rights\n&amp; Legal Matters and Anti-Corruption &amp; Financial Crimes for further\nlegislative action. The basis for rescission being that the version of the\nclause passed was in contravention to <strong>Article 12(7)<\/strong>&nbsp;of\nthe United Nations Convention against Transnational Organised Crime (UNTOC)\nwhich provides that:<\/p>\n\n\n\n<p>\u201c<em>State parties may consider the possibility of\nrequiring that an offender demonstrate the lawful origin of alleged proceeds of\ncrime or other property liable to confiscation, to the extent that such a\nrequirement is consistent with the principles of their domestic law and with\nthe nature of the judicial and other proceedings<\/em><em>.\u201d<\/em><\/p>\n\n\n\n<p>The &nbsp;Joint Committees went on to meet with investigating\nagencies in order to make a decision as to the version of clause 74 to be\nincluded in the bill. According to the report of the Joint Committees presented\nat Senate plenary on Wednesday, 23<sup>rd<\/sup> March 2022, the investigating\nagencies submitted that the implication of maintaining the version of the\nclause passed by the Senate is the fear of inclusion of Nigeria among countries\nin the Financial Action Task Force (FATF) Grey List, which will mean increased\nscrutiny for Nigeria by the Task Force. The agencies also assured that\nmaintaining the original version of the clause is in the best interest of the\ncountry and committed not to abuse the powers conferred on them by the\nprovision. <\/p>\n\n\n\n<p>The Joint Committees in their report stated among\nothers, that: <\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>The\noriginal provision of clause 74 which places the burden of proof on the\ndefendant is in line with global best practices. <\/li><li>Requiring\na criminal conviction to be established before seizure and forfeiture of assets\nderived from unlawful activities, is against the intention of the bill and not\nin conformity with similar legislations in other jurisdictions. <\/li><li>Maintaining\nthe version of clause 74 passed by the Senate will undermine Nigeria\u2019s\ncommitment and obligation to the UNTOC, to which it is a signatory. <\/li><li>One of\nthe recommendations of FATF on non-conviction based asset forfeiture&nbsp; is that confiscation and provisional measures\nshould be such that enable competent authorities to freeze or seize and\nconfiscate assets without prejudice to the rights of bona fide third parties. <\/li><li>One of\nthe intendments of clause 74 (original version) is to ensure recovery of\nproceeds of crime with or without conviction. <\/li><\/ul>\n\n\n\n<p>Following from the presentation of this\nreport, and the recommendation of the Joint Committees that the Senate pass the\noriginal version of clause 74 of the bill, the Senate approved the report of\nthe Committees and passed the clause accordingly. <\/p>\n\n\n\n<p>This new position of the Senate on clause 74\nof the Proceeds of Crime bill is worrisome. The position of Common law (from\nwhich Nigerian law developed) on burden of proof is that a person who makes an\nallegation has the responsibility to prove it. This principle is also embedded\nin section 131of the Evidence Act 2011. Also, one of the principles of fair\nhearing, as contained in section 36(5) of the 1999 Nigerian Constitution provides\nthat a person who is charged with a criminal offence shall be presumed innocent\nuntil proven guilty. The original version of clause 74 of the bill which the\nSenate has just passed, places the burden of proof on the defendant and this contravenes\nthese principles. Article 12(7)&nbsp;of the UNTOC cited as the basis for adopting this\nversion of the clause is suggestive and subject to the principles of domestic\nlaw in each country. Nigerian criminal law places the burden of proof on the\nprosecution, in addition to requiring that the prosecution proves its case\nagainst a defendant beyond reasonable doubt. In the light of this, the version of\nthis clause as adopted by the Senate is inconsistent with Nigeria\u2019s domestic\nlaw. <\/p>\n\n\n\n<p>In addition to breaching the fundamental rights of\nindividuals, the requirement for a defendant to bear the burden of proof and the\nprovision for non-conviction based asset forfeiture to the Federal Government\ncan be tools of abuse in the hands of investigating agencies, as they can apply\nthese provisions arbitrarily or as a witch-hunting strategy against perceived\nenemies of a government in power. <\/p>\n","protected":false},"excerpt":{"rendered":"<p>The Senate on Wednesday, 23rd March 2022, considered and approved the report of its Joint Committees on Judiciary, Human Rights &amp; Legal Matters and Anti-Corruption &amp; Financial Crimes on the re-committal of clause 74 of the Proceeds of Crimes (Recovery and Management) Bill, 2022 (SB. 553 &amp; SB. 645). The bill seeks to provide an [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":2577,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-2566","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/posts\/2566","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/comments?post=2566"}],"version-history":[{"count":2,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/posts\/2566\/revisions"}],"predecessor-version":[{"id":2578,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/posts\/2566\/revisions\/2578"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/media\/2577"}],"wp:attachment":[{"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/media?parent=2566"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/categories?post=2566"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/placng.org\/Legist\/wp-json\/wp\/v2\/tags?post=2566"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}