According to the FBI - The Federal Bureau of Investigation: "Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture "takes the profit out of crime" by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities."
President Goodluck Jonathan should as a matter of urgency and national interest, send a bill to the National Assembly designed to dilute or lessen the burden of proof required to secure a forfeiture in the prosecution of fraudsters, rogue bankers, corrupt politicians, and millionaire civil servants. The standard is very clear: once a probable cause has been established by the Prosecutor, the burden of proof of not guilty of the offense charged shifts to the accused or the owner of the Bank Accounts or Properties seized. In other words, in cases of frauds or embezzlement perpetrated by individual or group of individuals against other people, or against public or private institutions, the burden of proof should be a preponderance of the evidence and not proof beyond reasonable doubt standard. In such cases, we shift the burden of proof - the source or sources of funds for the property or Bank Accounts - to the accused. Thus, relieving the Prosecutor or EFCC to prove its case beyond reasonable doubt.
All that is required of the ICPC or EFCC is to show probable cause for the underlying fraud or scam. Once the Prosecutor or EFCC has established a prima facie case for fraud, scam, or embezzlement, proof of innocence - I did not steal or assist others to steal, or I am innocent and I am not guilty - should shift to the accused or the owner of the Bank Accounts or landed Properties. If they cannot establish an ascertainable source or sources of their new wealth or Bank Accounts, then such wealth and Bank Accounts and Properties should, as a matter of law, be forfeited automatically to the state (Nigeria).
Now, let’s take a pause and reflect and ask ourselves this simple question: of what use wasting tax payers’ money and time prosecuting a civil servant or a serving or retired politician who accumulated multi-million Dollar worth of landed properties and Bank Accounts at home and abroad that ordinarily, he cannot afford or acquire through his regular salary? That is the essence of "Civil Asset Forfeiture Law" - the thief or the accused must prove that he or she did not commit fraud against the state or did not take part or collude or influence the commission of frauds by others against the state, either by his action or inaction. It is certainly not a criminal proceeding.
I do not want to dwell on the legal history or constitutionality of Civil Asset Forfeiture Law, suffice it to say that given the egregious nature of the scams perpetrated by the oil subsidy fraudsters as well as other corrupt practices perfected by Nigerians at an ongoing basis, a "Civil Asset Forfeiture Law", is our best bet.
At this juncture, I would like to remind Nigerians that “Civil Asset Forfeiture Law” cases are in rem proceedings - the focus is on the Bank Accounts, Assets, or Properties of the thieves or fraudsters, and not the individual or fraudsters who perpetrate the crime. It is solely after the fruits of crime and not the person or the criminals who perpetrate the crime. In that case, it can be easily deployed without the usual procedural mumbo jumbo prevalent in criminal prosecution.
Also, we shouldn't be unmindful of the exorbitant legal fee charged by celebrity lawyers and Senior Advocates in fraud related cases. The thieve or the fraudster has nothing to lose; he did not sweat to acquire the money he is willing to spend to hire the best lawyers in town. The case of the rogue Banker is still very fresh in our memory. In a decent society, that is a national scandal. How could one justify hiring and paying five Senior Advocates of Nigeria just in one case, and at the end, the presiding Judge declined to continue with the case after lambasting the SANs for incompetent prosecution? According to the Judge, “I hereby dismiss the charges amended or otherwise on the grounds of incompetence. I discharge the accused person accordingly.’’ “They are a drain on the public purse.’’ “They” as used in the last sentence, refers to the five Senior Advocates of Nigerians who handled the case form EFCC. That is a huge financial loss to us as a country. First, the accused stole our money, then we paid lazy lawyers to do a futile job.
As an addendum: I want to make it abundantly clear that I am not against capitalism or private ownership or private acquisition of wealth; however, I am unequivocally against over-leveraged capitalism and the prevailing culture of impunity and blatant abuse of political office by those vested with such power. To continue to enrich yourself with money, cars, and property that you and your immediate family members cannot utilize under normal circumstances, borders on insanity and stupidity. It is not fair. It is not right. And it is morally repugnant. It must stop.
At this juncture, I would like to remind Nigerians that “Civil Asset Forfeiture Law” cases are in rem proceedings - the focus is on the Bank Accounts, Assets, or Properties of the thieves or fraudsters, and not the individual or fraudsters who perpetrate the crime. It is solely after the fruits of crime and not the person or the criminals who perpetrate the crime. In that case, it can be easily deployed without the usual procedural mumbo jumbo prevalent in criminal prosecution.
Also, we shouldn't be unmindful of the exorbitant legal fee charged by celebrity lawyers and Senior Advocates in fraud related cases. The thieve or the fraudster has nothing to lose; he did not sweat to acquire the money he is willing to spend to hire the best lawyers in town. The case of the rogue Banker is still very fresh in our memory. In a decent society, that is a national scandal. How could one justify hiring and paying five Senior Advocates of Nigeria just in one case, and at the end, the presiding Judge declined to continue with the case after lambasting the SANs for incompetent prosecution? According to the Judge, “I hereby dismiss the charges amended or otherwise on the grounds of incompetence. I discharge the accused person accordingly.’’ “They are a drain on the public purse.’’ “They” as used in the last sentence, refers to the five Senior Advocates of Nigerians who handled the case form EFCC. That is a huge financial loss to us as a country. First, the accused stole our money, then we paid lazy lawyers to do a futile job.
In a nutshell, "A Civil Asset Forfeiture Law" expedite seizures of private funds and landed properties illegally acquired by bogus contractors and dubious billionaire civil servants. For instance, petroleum marketers who scammed our petroleum subsidy funds should be made to show proof of their supply and concrete evidence of overseas dealers and how and where they deliver their petroleum products in Nigeria. Right now and as it has always been, EFCC, the Justice Department are under stress, and trial courts are overwhelmed with fraud and scam related cases. A shift in the burden of proof from the Prosecutor to the accused, will no doubt, expedite trial and lessen the work load drastically.
In conclusion, "Civil Asset Forfeiture Law" is designed to eliminate the usual, but unprofessional recalcitrance of the SANs and celebrity lawyers (who most often represent the thieves) that EFCC has to deal with on regular basis. Above all, it will curtail the unpardonable mumbo jumbo and cumulative time wasting procedural legalese from defense lawyers that most often obscure substantive evidence. You and I know that most of these cases are often frustrated or thrown out through procedural technicalities, without reaching a final verdict. We can do better.
We can change all that if we are willing. Believe me, Nigeria is easy to govern. It's all about audacity and a willingness on the part of the President, EFCC, ICPC and the Attorney General and Minister of Justice to embrace and implement changes in the war against corruption, no matter the likely impacts on political friends and allies. The Presidency and the National Assembly should, as a matter of urgency, help EFCC to help itself, by passing into law a “Civil Asset Forfeiture Law” as soon as possible, if we must succeed in our war against rogue Bankers, Billionaire Civil Servants, Greedy and Insane Governors, Oil Marketers as well as the shameless and graft prone Members of the National Assembly.
In conclusion, "Civil Asset Forfeiture Law" is designed to eliminate the usual, but unprofessional recalcitrance of the SANs and celebrity lawyers (who most often represent the thieves) that EFCC has to deal with on regular basis. Above all, it will curtail the unpardonable mumbo jumbo and cumulative time wasting procedural legalese from defense lawyers that most often obscure substantive evidence. You and I know that most of these cases are often frustrated or thrown out through procedural technicalities, without reaching a final verdict. We can do better.
We can change all that if we are willing. Believe me, Nigeria is easy to govern. It's all about audacity and a willingness on the part of the President, EFCC, ICPC and the Attorney General and Minister of Justice to embrace and implement changes in the war against corruption, no matter the likely impacts on political friends and allies. The Presidency and the National Assembly should, as a matter of urgency, help EFCC to help itself, by passing into law a “Civil Asset Forfeiture Law” as soon as possible, if we must succeed in our war against rogue Bankers, Billionaire Civil Servants, Greedy and Insane Governors, Oil Marketers as well as the shameless and graft prone Members of the National Assembly.
As an addendum: I want to make it abundantly clear that I am not against capitalism or private ownership or private acquisition of wealth; however, I am unequivocally against over-leveraged capitalism and the prevailing culture of impunity and blatant abuse of political office by those vested with such power. To continue to enrich yourself with money, cars, and property that you and your immediate family members cannot utilize under normal circumstances, borders on insanity and stupidity. It is not fair. It is not right. And it is morally repugnant. It must stop.