Asset Recovery Legislation (NG0008)

This commitment is to strengthen Nigerian laws with regards to asset recovery especially non-conviction based confiscation powers and unexplained wealth orders; and ensure proper management of assets and proceeds

8: To strengthen Nigeria’s asset recovery legislation including non-conviction-based confiscation powers and the introduction of unexplained wealth orders

Language of the commitment as it appears in the action plan:

“This commitment aims to strengthen Nigerian laws with regards to asset recovery especially non-conviction-based confiscation powers and unexplained wealth orders and ensure proper management of assets and proceeds.”

Milestones:

8.1. Enactment of the Proceeds of Crime Act

8.2. Capacity building for the ACAs to implement non-conviction-based asset forfeiture regime

8.3. Federal Ministry of Justice to develop guidelines for transparent management of recovered assets pending the enactment of the law

Start Date: January 2017 End Date: June 2019

Action plan is available here:

Context and Objectives

This commitment seeks to enact legislation that would aid asset recovery and ensure proper and transparent management of recovered assets.

President Buhari positioned the recovery of stolen assets at the forefront of his political agenda. [86] Between May 2015 and November 2017, MDAs reportedly recovered assets worth millions of Naira. [87] In 2017, the president set up a committee on the Audit of Recovered Public Assets to audit recovered assets, which reported a year later that assets worth billions of Naira had been recovered. [88]

The success of these asset recovery efforts is difficult to measure given a substantial lack of transparency in data, which causes concern that recovered assets are being re-looted. [89]

Lack of transparency has been exacerbated by a fragmented and inefficient legal and institutional framework for asset recovery. As far back as 2000, Nigeria had laws and agencies addressing the proceeds of crime and corruption, [90] including the Independent Corrupt Practices and Other Related Offences Act of 2000, [91] the Economic and Financial Crimes Commission (Establishment) Act, 2002, [92] and the National Drug Law Enforcement Agency Act, 2004. [93] However these laws (among others) have failed to provide a harmonized legal and institutional framework for the confiscation, seizure, recovery, and management of assets and property derived from illegal activities. [94]

In response, the Nigerian government created the Proceeds of Crime Bill which establishes the Proceeds of Crime Recovery and Management Agency (PCRMA). [95] According to the Bill, the PCRMA deals specifically with asset recovery, including non-conviction asset forfeiture which was unavailable in the asset recovery regime. [96] The Nigeria Senate passed the Proceeds of Crime Bill in 2015, [97] but the law is not yet passed in the National Assembly. [98] Support for the Proceeds of Crime Bill in civil society is split; some believe it will more clearly define the roles and powers of relevant institutions, [99] and others maintain that the existing laws must simply be strengthened and establishing an additional agency was not warranted. [100] The Civil Society Legislative Advocacy Centre (CISLAC) argued that the Bill needs to provide for a central database for recovered assets, and a new institution responsible for the transparent management of all assets. These institutions should include civil society representation on their executive boards. [101]

This commitment is relevant to the OGP values of access to information and public accountability. Although the IRM researcher was not able to review the Proceeds of Crime Bill, commentary on the draft legislation suggests that there were no provisions that would require agencies to publish information on recovered assets. [102] The commitment nevertheless included outcomes of published guidelines on transparent management of assets and publicly available information on the use of recovered assets.

Overall, the milestones are objectively verifiable. The enactment of the POCA is straight forward to determine, and it should be possible to identify the FMoJ’s guidelines on asset recovery. The capacity-building activities in Milestone 8.2 seem less verifiable.

This commitment should have a minor impact. There was no consensus amongst stakeholders that the bill provides the robust regulatory framework needed for the transparent management of recovered assets. [103] David Ugolor, Executive Director of ANEEJ, believes the bill will provide agencies with a specific mandate to deal with asset recovery and non-conviction based asset forfeiture, which is currently unavailable. [104] However, the commitment is vague regarding the ACAs’ capacity building exercises and the FMoJ guidelines. Although failing to address the problem of transparent management of recovered assets, the commitment is nevertheless a positive and incremental step toward a more functional legal and institutional framework for asset recovery.

Next Steps

Asset recovery legislation is an important tool that will benefit open government initiatives in Nigeria. Future commitments in this policy area should include:

• Developing specific activities such as a central database on recovered assets, civil society representation on, or engagement with, the PCRMA, and indicators on monitoring and publishing information on resolved cases;
• Government publication of information on recovered assets on a dedicated platform; and
• Considering technology or innovative processes to implement this commitment.

8. To strengthen Nigeria’s asset recovery legislation including non-conviction based confiscation powers and the introduction of unexplained wealth orders

Language of the commitment as it appears in the action plan:

“This commitment aims to strengthen Nigerian laws with regards to asset recovery especially non-conviction based confiscation powers and unexplained wealth orders and ensure proper management of assets and proceeds.”

Milestones:

8.1 Enactment of the Proceeds of Crime Act

8.2 Capacity building for the ACAs to implement non-conviction based asset forfeiture regime

8.3 Federal Ministry of Justice to develop guidelines for transparent management of recovered assets pending the enactment of the law

This commitment sought to strengthen Nigerian laws by enacting legislation that would aid asset recovery and ensure proper and transparent management of recovered assets. Since 2000, Nigeria has enacted various laws and created agencies to handle proceeds from crime and corruption. ^[78] However, these laws fail to provide a harmonized legal and institutional framework for the confiscation, seizure, recovery, and management of such assets and property. ^[79]

Implementation of the commitment is limited. The Proceeds of Crime Bill, which would have provided a legal framework for asset recovery and utilization, is still pending. ^[80] However, the government made headway by issuing relevant regulations and guidelines. An Asset Recovery Management Unit was established, which issued the Asset Tracing, Recovery and Management Regulations in October 2019. ^[81] The President Advisory Committee Against Corruption (PACAC) also issued guidelines on asset management. ^[82] While the President established an Audit Committee, there are still no monthly reports on recovered assets and utilization. ^[83] Some capacity building efforts were undertaken. ^[84] Specifically, the Asset Management Unit and the Africa Network for Environment and Economic Justice (ANEEJ) held capacity-building events on non-conviction based asset forfeiture regime for 16 government entities. ^[85]

This commitment marginally changed asset recovery and transparency practices. While the Proceeds of Crime Bill was not passed, establishment of the Asset Recovery Management Unit and asset management regulations have set the groundwork for standardized asset management. As this commitment is carried forward in the next action plan, the government should prioritize partnering with CSOs to ensure transparent asset recovery and spending.