Confiscation of suspect’s assets unconstitutional, says Walson-Jack

Former General Secretary of the Nigerian Bar Association, Nimi Walson-Jack

Former General Secretary of the Nigerian Bar Association, Nimi Walson-Jack, told KELVIN EBIRI (South-South Bureau Chief), that confiscation of a suspect’s property while being investigated or prosecuted is unconstitutional.

What is your position on the confiscation of assets of persons under investigation by the EFCC?
When a suspect is under investigation or prosecution, he is presumed innocent. But by seizing his property, you have tied his hands. How is he supposed to get a lawyer? The law says he is entitled to a legal defence in a court of law properly constituted. So, if he doesn’t have money to hire a good lawyer, how can he get a good defence? So, that section of the law if nothing else, is unconstitutional, as many of us will argue. The whole law is unconstitutional. The second part of it is, lets say okay you have been found guilty, so your property is confiscated because the property is a proceed of a crime like money laundering. Now, what do we do with the property? That is the point that I have made that the government is not even using these properties and we have some of them here in Port Harcourt that we know. They are just wallowing in waste. So, of what use are the properties? Nobody is buying them from you, then, at the same time you are not using them for anything. Even if we were using them as hospitals, wouldn’t they be more beneficial? But they are not being used. So, you ask yourself at the end of the day, what was the essence of the law? We are now in the same realm as when we seize petroleum products or when we seize goods by Customs and Exercise. That is the reality. We don’t use them, but rather waste them. So, it is the same principle that is circulating in all arms of government. You seize houses and for the next ten years, they are laying waste. So, what do we do with them? The government is not using them to quarter anybody. The government is not using them as offices, hostels or hotels and the assets are just there.

Who should be in custody of these seized properties?
The EFCC takes custody for its own, just like Customs and Exercise are in custody of their own seized goods. Now, the law says the EFCC should hand them over to the Federal Government. It is now for the presidency, which is the foundation of the executive arm of the Federal Government to decide whether they are handing over to the Ministry of Housing or are they donating them to any ministry or department for a specific service or are they selling them. There are different agencies that have specialisation for doing different things, so it is the responsibility of the executive arm to decide what they want to do with them. If the executive arm is not ready to take that decision, maybe the legislative arm may have to step in to further amend the law to say what those properties should be used for. If an industry is seized, maybe it should be given to Ministry of Trade and Industry. If a hospital is seized, maybe it should be given to Ministry of Health. But that will be too mundane for the National Assembly to begin to be specific in those matters. Those are things you leave to executive discretion.

What of properties recovered from officials of state governments?
The law says upon conviction the property will revert to the Federal Government. In a situation where the offence is committed against a state, say a former governor is prosecuted for stealing state funds; many of us have argued that it is not a federal offence. It is a state offence because the money is state money. Be that as it may, when you recover money from a public officer who stole the money belonging to the state, is it Federal Government money? The Federal Government has taken its own allocation from the Federation Account. How then can you now carry my own, which was stolen by a thief, and turn it into a Federal Government property? It is wrong. In terms of money, that is easy to deal with. There are two things here. At the point the properties are seized, they don’t belong to the EFCC. They are in suspense. That is a point. I guess one of the reasons why they seize the properties is to ensure that they are not disposed off because in law when third party interest intervenes in a matter, then a lot of legal challenges crop up.

Okay, let us say that they want to preserve the property. At that point it does not belong to the government. If the person is not found guilty, the property returns to the person. That one is not a problem. We have a problem when the person is convicted. And that is the point I am making that if the person is convicted, if he is a public officer of a Local Government Area, that means it was Local Government Area money that was stolen. So, we should return that property or money to the Local Government. If it is a state public officer, we should return the confiscated property or money to the state. If the person was a federal official, it means it was federal money that he stole. That is the point I have made that you cannot seize the proceed of a crime that belongs to a state and convert it to Federal Government’s property, it is wrong. With due respect, I am shocked that serving state governors have not really taken this EFCC thing headlong because the EFCC Act as it is presently is an aberration of a Federal Government structure of governance. It is wrong. This assumption that local governments and states cannot take care of themselves, that the almighty federal is the one that should take care of all of us is not correct. The earlier the members of the National Assembly who of course represent states and governors themselves deal and look at this issue, the better for everybody.

Why will you advocate for a review of the EFCC Act and structure?
One of the errors made in the establishment of the EFCC is the domination of that institution by police personnel. The EFCC is a different organisation from the Nigerian Police Service. But those who made the law with due respect, were not schooled in the area of the law they were making. So, we have ended up with a Police Force with the name EFCC. Whatever name we call the organisation, we operate in a democracy and every institution can only exercise the power and the authority given to them by law. So, the EFCC is subject to law and can only operate within the realms of law. Look at a simple issue like the seizure of assets. Seizure of assets is directly related to a commission of a crime or investigation of a crime. Now, it then means that if you are being investigated by EFCC, the laws says EFCC can get an interim order to seize your asset. Even if you are going to conduct a search, there must be a name on the search warrant with an address. So, that person’s property is what is to be seized. So, if they say it is Kelvin’s house at in No 6A Harvey Street, and while they are searching your house and I am visiting and my car is there, they cannot seize my car, because my car is not Kelvin’s car and my name is not on the search warrant.

Do you think EFCC should disclose the amount of money recovered from looters?
We should know. In fact, in the more advanced societies, there will be civil society organisations that will be tracking everything about the EFCC. Every time EFCC is in court, somebody reports. Every time a judge rules that an amount is forfeited, somebody collates it. Anytime EFCC announces we have recovered this, somebody collates it. It is people’s work. But you see that work is not free. It is a means of livelihood and so they are dependent on people, organisations funding the process.

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