Authority stealing and unexplained wealth orders, By Uddin Ifeanyi

I their different ways, the United Kingdom, Australia, Kenya, Mauritius, and Trinidad & Tobago, offer useful examples of how illicit-enrichment laws could be designed to make “authority stealing” more difficult.

The main takeout from the analyses of Alhaji Dangote’s allegations is that “authority stealing” – Fela’s name for the malaise – remains a major national problem. Another way of describing this is that the Nigerian government still has not settled on a lawful and proportionate way of confronting obvious illicit wealth, in the face of the failure of traditional criminal prosecution to handle cases of kleptocracy and corruption.

All through last week, our talking heads and their many echo chambers were exercised by Alhaji Aliko Dangote’s (Africa’s richest person and chief promoter of the country’s leading refining complex) allegations of impropriety against Engineer Farouk Ahmed (erstwhile chief executive officer of the Nigerian Midstream and Downstream Petroleum Regulatory Authority). The severity of Mr Dangote’s claims aside (those still need to be properly established by a competent authority – if ever), the drama from the supporters of both sides mattered more, because through several incarnations, we have been down this route innumerable times before.

“Argument about stealing/Somebody don take something/Wey belong to another person/Then you go hear:/You be thief (I no be thief)/You be rogue (I no be rogue)/You dey steal (I no dey steal)/You be robber (I no be robber)/You be armed robber (I no be armed robber)”, was how Fela Anikulapo-Kuti in his inimitable style called these episodes in our nation’s history. The domestic market for eventually unproven accusations of corrupt practices goes even further back. In actual fact, Joseph Sarwuan Tarka’s resignation in 1974 from his post as the Federal Commissioner of Communications in the Yakubu Gowon administration leads the claim to be its apotheosis. Accused of corruption by Godwin Daboh, Mr Tarka, under pressure from near-daily newspaper coverage of these allegations, resigned. It was the first time a prominent political office holder was to resign in such circumstances in this country, and it bequeathed the ugly phrase: “If you Tarka me, I’ll Daboh you” to our polity.

The main takeout from the analyses of Alhaji Dangote’s allegations is that “authority stealing” – Fela’s name for the malaise – remains a major national problem. Another way of describing this is that the Nigerian government still has not settled on a lawful and proportionate way of confronting obvious illicit wealth, in the face of the failure of traditional criminal prosecution to handle cases of kleptocracy and corruption. The courts are invariably too slow, the prosecuting authorities find financial trails hard, or impossible, to follow, and/or the processes have been suborned.

By placing the burden of proof on the accused, UWOs raise operational concerns over conflict with the traditional presumption of innocence that undergirds common law. Poorly framed, therefore, the orders are also open to political misuse — enabling the authorities to harass opponents. The absence of competent forensic financial capability, access to bank and beneficial ownership data, and international cooperation, further limits the legal system’s ability to successfully use these orders.

Yet, in their different ways, the United Kingdom, Australia, Kenya, Mauritius, and Trinidad & Tobago, offer useful examples of how illicit-enrichment laws could be designed to make “authority stealing” more difficult. A reversal of the usual evidential burden lies at the heart of these laws. Known as Unexplained Wealth Orders (UWO), these civil (non-criminal) court processes do not by themselves convict someone of a crime, but they require a person to explain the source of particular assets when these appear to be disproportionate to that person’s known lawful income. In its non-criminal iteration, once authorities show a reasonable suspicion that assets are out of synch with lawful income, the respondent must provide a satisfactory explanation of the source of his/her wealth, or risk civil recovery and/or forfeiture.

By placing the burden of proof on the accused, UWOs raise operational concerns over conflict with the traditional presumption of innocence that undergirds common law. Poorly framed, therefore, the orders are also open to political misuse — enabling the authorities to harass opponents. The absence of competent forensic financial capability, access to bank and beneficial ownership data, and international cooperation, further limits the legal system’s ability to successfully use these orders.

Safeguards, including independent judicial oversight and strict thresholds, are, thus, needed if human rights are not to be infringed upon in the use of these orders. The delineation of clear statutory thresholds for the orders is no less important. As are the designation of targeted powers (e.g., politically exposed persons, or when reasonable suspicion exists), institution of strong inter-agency cooperation (financial intelligence unit, asset recovery agencies, tax authorities), the operation and management of beneficial-ownership registries, the capacity to freeze and/or manage assets, and the crafting of rules on the use and return of recovered funds.

It is unlikely that the 40 thieves that Ali Baba chanced on in that cave in Scheherazade’s telling of the “Tales from the Arabian Nights” could ever be prevailed on to implement a UWO. Crucially, certain parts of the Economic and Financial Crimes Commission’s (EFCC) enabling statute anticipates the principle of the reversal of evidential burden that is the fulcrum of the UWO’s many levers. Who will bell the cat, then?

Once these guardrails are in place, it is easy for the law enforcement and intelligence agencies to identify suspicious assets. These could include property, bank accounts, and luxury goods. Then, by indicating reasonable grounds to suspect assets are disproportionate to known income and that criminal activity may be involved, the agencies apply to a court for an unexplained wealth order. The court grants the UWO and, nearly always, an interim freezing order to stop dissipation of the assets in question. At this point, the accused person is required to disclose the origin and/or source of funds and supporting evidence. If the explanation is inadequate, the state may thereafter bring civil recovery proceedings or seek forfeiture of the assets. Where evidence of a crime emerges, criminal prosecution may follow.

Simple to implement? Yes. But only where there is an abundance of political will. It is unlikely that the 40 thieves that Ali Baba chanced on in that cave in Scheherazade’s telling of the “Tales from the Arabian Nights” could ever be prevailed on to implement a UWO. Crucially, certain parts of the Economic and Financial Crimes Commission’s (EFCC) enabling statute anticipates the principle of the reversal of evidential burden that is the fulcrum of the UWO’s many levers. Who will bell the cat, then? This coordination question sits squarely at the heart of Nigeria’s dilemma with authority stealing.

Uddin Ifeanyi, journalist manqué and retired civil servant, can be reached @IfeanyiUddin.