How EFCC should work
In a normal world, one would describe the confusion following the recent discovery of millions of dollars in cash, in an apartment in Ikoyi, as egg on the EFCC’s face. However, the track record of the EFCC suggests that it is impervious to embarrassment and that the soap opera will have a few more episodes still. The ratings for the EFCC Show are quite high and there’s an almost universal anger at the sheer amounts of money being mentioned. While on the one hand, money has indeed been stolen from Nigeria and should be recovered and the thieves punished, on the other hand it might be worth remembering a few things about prosecutions and sending people to jail for crimes committed.
The Justice System is stacked against the prosecution
We practice a system of criminal justice in which there is a presumption of innocence in favour of the accused and the prosecution is required to prove its case beyond reasonable doubt. What this means is that if the accused person can inject reasonable doubt into the equation, he or she will not be convicted. The way several unconnected people have been joined to the Ikoyi debacle shows how necessary and how justified this approach is. It sets a standard that requires the prosecution to do the hard work of finding proof linking the accused to the alleged crime, otherwise, the EFCC or the government would be able to throw anyone in jail. Knowing the constitutional standard of proof, the EFCC must, as they have been advised by at least two of my senior learned colleagues in the past weeks, become more strategic in how they pursue these matters. The rush to parade “loot” is completely irrelevant to securing a conviction and may even give the suspect more time to contrive a defence.
There is no threshold for cash at home
In spite of the popular belief online, there is no law regulating how much cash people can keep in their houses. Of course, it is highly suspicious, but it is not of its own illegal to have loads of cash in one’s possession. The stated limits in laws regulating money laundering refer to transactions routed through financial institutions. There is also a threshold beyond which cash must be declared at ports to customs. Beyond that, there is no legal compulsion to declare or bank money and people are free, bearing in mind the attendant risks, to keep as much cash as they like at home. This is why the fakest “sting” in the history of stings is unravelling very quickly and this is why the acclaimed Whistle Blower Policy is not going to be a substitute for investigative work. What the money laundering regulation requires the EFCC to show is that the money is from an illicit source, such as bribery and corruption, smuggling, tax evasion, bunkering and so on. Remember that the burden of proof is on the prosecution and the EFCC must show an illicit origin or activity. This is the reason that US law enforcement, for example, compile hours of surveillance and mark the currency used in their stings.
The Right to Break into Premises
Whistle Blower Policy or not, the law is still clear on the requirement of search warrants prior to law enforcement agencies breaking into private premises. It also seems, from the EFCC Act, that the EFCC’s power to seize property prior to the conviction of a suspect or an accused person is only available if the seizure is incidental to an arrest or search. It should very quickly be pointed out too that recovering evidence without a warrant does not make the evidence inadmissible in our legal system and the remedy, if any, is probably limited to damages being paid to the property owner. Perhaps this also contributes to the laxness of the EFCC in building its cases and rushing to display its booty to the public. More pertinent to the relevant case, if a search warrant was indeed obtained, who was listed on the application for the warrant as the owner of the property and what offence did the EFCC state it suspected had been committed? If this information was used to obtain the warrant, why was there so much confusion as to the ownership or origin of the money? And why are search warrants never exhibited along with the booty?
The Senate has twice declined to confirm the acting EFCC Chairman’s appointment and the government as a whole is eager to show that it is working on delivering on campaign promises. These make the pressure to show the public something, anything, understandable. However, there is no escaping the painstaking process of surveillance, forensic auditing and building much stronger cases if the EFCC is going to deliver on the President’s promise to fight corruption. Corruption will indeed fight back but come on; stop sending farmers with hoes and cutlasses to fight herdsmen with automatic assault rifles.
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