The Senate at its plenary session of Wednesday, 23 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).

Presenting the report of the Joint Committees, the Chairman, Sen. Opeyemi Bamidele (APC: Ekiti), informed lawmakers that the original provision in clause 74 which is under Part XI of the Proceeds of Crimes (Recovery and Management) Bill deals with “Burden of Proof” and provides that:

“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 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”

Sen. Bamidele stated that the Joint Committee had conducted further legislative scrutiny on the version passed by the Senate and resolved to engage with the relevant agencies which included the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Code of Conduct Bureau (CCB), the Nigeria Customs Service, and the Nigeria Financial Intelligence Unit (NFIU).

In his submissions, Sen. Bamidele explained that the aforementioned agencies unanimously agreed that the original provision of clause 74 be retained, as the version passed by the Senate might likely lead to the inclusion of Nigeria on the Grey List of the Financial Action Task Force (FATF) and this implies that Nigeria will be under increased scrutiny, attract stricter sanctions and ultimately decertification.

Following from the submissions of the agencies, Sen. Bamidele noted that the Joint Committee resolved to retain the original provision of clause 74 considering the fact that:

1. The said provision is in line with global best practices and ensures the recovery of proceeds of crime with or without conviction.
2. The mandatory requirement for the establishment of a criminal conviction before forfeiture and seizure of proceeds of crimes or assets derived from unlawful activities is against the intendment of the Bill.
3. Retaining the provision of clause 74 as passed by the Senate will undoubtedly undermine Nigeria’s commitment and obligation to the United Nations Convention Against Transnational Organized Crime (UNOTC) and contradicts the recommendation of the FATF on Non-Conviction Based Asset Forfeiture.

Note that Article 12 (7) of the Convention 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”

In conclusion, Sen. Bamidele urged the Senate to consider and approve the original provision of clause 74 of the Proceeds of Crimes (Recovery and Management) Bill, 2022.

It will be recalled that the Senate at its plenary session of Tuesday, 15 March 2022, rescinded its decision on clause 74 of the Proceeds of Crime (Recovery and Management) Bill, and re-committed it to the Committees on Judiciary, Human Rights and Legal Matters, and Anti-corruption and Financial Crimes.