On 12th May 2022, President Muhammadu Buhari signed into Law the Proceeds of Crime (Recovery and Management) Bill, 2022 (“the Act”).
The Act seeks to provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime, a non-conviction-based procedure for the recovery of proceeds of crime, strengthen criminal confiscation procedure, and collaborate among the relevant organization in tracing properties reasonably suspected to be proceeds of unlawful activity.
This Article seeks to highlight novel provisions introduced by the Act.
- ADMINISTRATION BY RELEVANT ORGANISATIONS – SECTIONS 58-67
The Act establishes a group of diverse law enforcement and security agencies collectively known as Relevant Organisation. The Relevant Organisation is to enforce and administer the provisions of the Act.
A relevant organization includes the Economic and Financial Crimes Commission; the Independent Corrupt Practices and other Related Offences Commission; the Nigerian Police Force; and such other organisations as the Attorney General of the Federation may designate from time to time.
- ESTABLISHMENT AND FUNCTIONS OF THE PROCEEDS OF CRIME MANAGEMENT DIRECTORATE – SECTION 3
The Act establishes the Proceeds of Crime Management Directorate in relevant organizations (“the Directorate”). The Directorate shall have the exclusive power to take over and assume responsibility for the proper and effective management of properties forfeited to the Federal Government of Nigeria among others.
The Directorate shall be informed of any property seized in the course of investigation within 14 days or soon thereafter for documentation. SECTION 5
Any property seized in the course of an investigation shall subject to the specific orders of the Court be transferred to the Directorate for its effective management within 30 days.
- NON-CONVICTION-BASED RECOVERY OF THE PROCEEDS OF CRIME
Abandoned properties or unclaimed properties reasonably suspected to be proceeds of unlawful activity can be recovered and forfeited without conviction. SECTION 7
Proceedings of this nature shall be civil proceedings and the standard of proof required in proceedings shall be on a balance of probabilities. Also, the rules or practice relating to hearsay evidence, given in furtherance of the proceeding is admissible. SECTION 8
- PRESERVATION ORDER – SECTION 9
A preservation order shall be granted by the Court to preserve property reasonably suspected to have been derived from unlawful activities and represents instrumentality of unlawful activity.
The Court in making a preservation order may direct the relevant organisation to notify any interested party of the preservation order by publishing the same in any widely circulating national newspaper within 14 days after the making of the order. SECTION 10
A preservation order shall expire 60 days after the date on which it was made. However, the same can be renewed where the preservation order has not been set aside and there are reasonable grounds to grant the renewal. SECTION 11
- DISPOSAL OF PROPERTY SUBJECT TO PRESERVATION ORDER – SECTION 13
The Relevant Organisation is empowered to apply to the Court for an order to sell a property subject to a preservation order at the prevailing market value where there are reasonable grounds to believe that property, may have its value diminished, disposed of, or destroyed.
The proceeds from the sale of any property shall be invested in the Central Bank of Nigeria treasury bills, pending the determination of the proceedings.
- FORFEITURE ORDER- SECTION 19
The Court shall make a forfeiture order under this Act where it finds on a balance of probabilities that the property concerned is reasonably suspected to be proceeds of unlawful activity or represent the proceeds of unlawful activity.
On a forfeiture order taking effect, the relevant organisation shall promptly hand over to the Directorate, the forfeited property.
- EFFECT OF APPEALS ON PRESERVATION OR OTHER ANCILLARY ORDERS- SECTION 20
A preservation order and any order authorising the seizure of the property concerned shall remain in force pending the outcome of any appeal against the decision concerned.
- RECOVERY OF CASH – SECTION 26
The Act authorizes a designated officer to seize and detain any cash in the process of being moved within or outside Nigeria, where he has reasonable grounds to suspect that it—represents proceeds of unlawful activity or is intended to be an instrumentality of an offence.
Cash includes notes and coins in any currency, cheques of any kind, including traveler's cheques, jewelry, and gold. SECTION 26 (2) (a).
A Designated Officer includes an officer of the Nigerian Customs Service, National Drug Law Enforcement Agency, Nigerian Police Force, or Nigerian Immigration Service.
- CONFISCATED AND FORFEITED PROPERTIES ACCOUNT – SECTION 68
There is established, under this Act, a designated account to be known as the Confiscated and Forfeited Properties Account to be maintained at the Central Bank of Nigeria.
The Confiscated and Forfeited Properties Account shall be managed by the head of the relevant organisation who shall be responsible for providing reports to the Minister of Finance.
There shall be paid into the Confiscated and Forfeited Properties Account any money realised from the proceeds of the sale, the management, or another form of disposal of forfeited assets. Section 68
- INDEMNITY OF OFFICERS – SECTION 80
The Act indemnifies Officers of the Relevant Organisations or a seconded officer from any organization or any public office of the Federation, against any proceedings brought against him in his official capacity.
The Act represents the Federal Government's attempt to strengthen the legislative framework for combating financial and other crimes in the country. The Act has introduced some laudable provisions that have realigned the fight against corruption and financial crimes with international best practices.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.