I am most honoured and humbled to take this opportunity to welcome you all to the official presentation of a book on ‘Strategies and Techniques of Prosecuting Economic and Financial Crimes’, which is organized by the Inter-Governmental Action Group against Money laundering in West Africa (GIABA). With many dignitaries coming from all ECOWAS countries, this event is truly epoch-making and I am delighted to welcome, especially our officials from outside Nigeria, to Abuja – the City of Unity and the regional headquarters of West Africa.
I would like to take this opportunity
to thank the Nigerian authorities, especially the Chief Justice of Nigeria and
the Attorney General and Minister of Justice for accepting to be associated
with this event and for their continued support and encouragement. I would also
like to thank the Speaker of the ECOWAS Parliament and his staff for the
support provided to us in making this event the huge success it is in my view.
My thanks and appreciations also go to the Ministers of Justice of Senegal and Cote
d’Ivoire, who graciously accepted to
co-present the book, as well as the Book Reviewer.
Although my task is to present a
welcome address, I would like to respectfully request the protection and
guidance of His Lordship, Hon. Justice Dahiru Musdapher, the Chief Justice of
Nigeria and Chairman of this occasion to reflect on some poignant issues for
the benefit of this large audience. Let me begin with a short statement of the
problem.
Economic and financial crime distorts values
and standards and creates injustice. In whatever form it is manifested, it is
often motivated by human greed. The proceeds of crime provide the means by
which new stages of organized crime can be financed. Illicit assets are used to
bribe officials and to impede effective criminal justice. When organized crime
applies its true financial muscle, the proper functioning of the socio-economic
and political systems can be impaired. Legitimate businesses are denied free
and fair competition. ‘The imprisonment of a senior United States Congressman
in February 2006 for receiving bribes over many years in return for arranging
lucrative contracts is one reminder of how economic and financial crime
penetrates the highest levels of even the most advance societies’. Fortunately,
the lessons learned from such examples have led to greater consciousness and
indeed the need for constant vigilance.
It is universally recognized that
economic and financial crimes, manifested in various dimensions and with
deleterious effects, are evils which threaten the foundations of any civilized
society and must be eliminated. This position has already been well established
by international legal authorities. For example, judgments of the Court of
Final Appeal and the Court of Appeal of Hong
Kong have held that:
a) Corruption
is indisputably a grave threat to the well-being of any society and is an evil
which cannot be tolerated
and
b) Bribery
and corruption are cancerous activities in a healthy and sound society. They
must be eradicated quickly and thoroughly, otherwise they would spread to the
whole community like a prairie fire that never burns out and the consequence is
disastrous
Financial crime is now a multi-headed
hydra, and the formulation of effective counter measures, including diligent
prosecution, is in the interest of all societies that seek to promote justice
and human security.Despite this apparent realization,
however, the challenges of combating these phenomena appear to be daunting and
even overwhelming. The methods with which these illegal practices are
consummated have become more sophisticated with rapid changes in technology and
globalization. The conditions in which the battle against these menaces is to
be waged are certainly different today than 30 years ago when there was no
compact disc, let alone the internet. We can talk today without poetic licence
of ‘living in a global village’. Voluminous transactions are carried out in the
cyberspace with no physical boundaries. The cyberspace, a medium which is
oblivious of time and territorial sovereignty, brings instantaneous
interconnections all over the world. This has certainly changed not only the
way of doing business, but indeed has had far reaching influence on our lives.
All these have made crime truly
transnational. Criminals take advantage of new technologies to crisis-cross
national boundaries with impunity. Transnational organized crime now can be
described metaphorically as ‘spreading like wild fire’. It takes just a click
of the mouse for millions of funds to be moved across jurisdictions. Yet, the
enforcers of the law against these offenders must operate within the ambit and
parameters of law.
On the other hand, the awareness
aroused amongst the citizens about the impact of these phenomena on security
and development has led to increased expectations of our institutions charged
with the prevention and control of economic and financial crimes. This
expectation relates to their standards of professional competence and
efficiency, as well as the benchmarks of transparency and accountability on
which they operate. It is against the background of these changing conditions
and circumstances that a meaningful fight against economic and financial crimes
should be anchored.
The Establishment and Mandate of GIABA
The scenario I have characterized suggests
that white collar crime is more sophisticated now than it has ever been, and
that the need for coordinated responses has never been greater - and this is
the main thrust of the establishment of GIABA. The GIABA was established by the
Authority of Heads of State and Government of ECOWAS with the mandate to
protect the economies of member States from the laundering of the proceeds of
crime. The main thrust of GIABA’s operations therefore is to support member
States to implement acceptable international standards against money laundering
and financing of terrorism, including United Nations Conventions and Security
Council Resolutions, and the FATF Recommendations.
The mandate of GIABA aims at promoting
the rule of law and one of its priorities is to assist member states to enact
legislation of acceptable international standard. I am delighted to say that with
GIABA’s active prodding and guidance, all member states have promulgated laws
criminalising money laundering. Although some of the laws still require
improvement to conform to acceptable international standards, what has been
accomplished indicates significant progress in the regional efforts to combat
money laundering. On the financing of terrorism, GIABA designed with the
assistance of development partners, a model CFT law which was adopted by member
states in June 2007. It is envisaged that all member states would have their
CFT laws in place by the end of the first round of evaluations in 2012.
The establishment and maintenance of a
Financial Intelligence Unit (FIU) is a major requirement for an effective
AML/CFT. Six years ago, only two countries, namely, Nigeria and Senegal, had
established FIUs. Today, with support of GIABA, 13 member states have
established FIUs, the remaining countries being Guinea and Liberia. The
FIUs are operating at various stages and we shall continue to provide the
necessary assistance.
Another measure of GIABA’S success is the
vast array of publications that it has been able to coordinate and orchestrate,
including its Annual Reports, Mutual Evaluation Reports, Typologies Reports,
Study Reports, and a model AML/CFT Compliance Manual for use by regional
financial regulators, financial institutions and other regulated businesses and
professions. These publications are invaluable resources for various AMF/CFT
stakeholders and researchers and represent an important contribution to the
regional effort.
Within the context of ECOWAS, GIABA has
demonstrated outstanding performance, with a programs implementation rate of
88% in 2008, 94% in 2009 and 98% for 2010 and 2011 respectively. In addition to
being consistent with the overall ECOWAS Vision 2020, GIABA’s programs have
helped to raise awareness about the dangers of transnational organized crime
and have complemented other ECOWAS integration programs, especially in criminal
justice, drug control, anti-corruption and good governance, micro-economics,
trade and free movement of goods and services.
In
short, GIABA has worked effectively over the past several years to help its
member States to build and consolidate systems to control ML and TF, and its
corollary, endemic corruption. It has actively supported the formulation of
National Strategies; it has encouraged the creation of active AML/CFT
Committees in each member country; it has helped establish and finance FIUs,
thus enhancing the investigative capacities of the MS; it has actively
advocated and supported the formulation or upgrading of AML and CFT laws; it
has helped fund and conduct numerous training activities on multiple related
subjects for officials all over West Africa; and it has elevated public
awareness regarding this issue in each MS. Indeed, it has systematically been
at the forefront of efforts to modernize and introduce international best
practices and standards to the region, in the areas of priority concern for its
mandate, those relating to ML/TF.
However,
despite all of this, there are still many grey areas where more work yet needs
to be undertaken. In order to effectively fight ML and TF, it is essential to
have a complete handle on the full chain of actions required to stop or at
least limit Organized Crime syndicates. Until now, GIABA has proceeded in a
logical and methodical manner: Basic National Strategies have been formulated
and enhanced. Law Enforcement has been significantly shored up (investigative capacity;
prosecutorial capacity; FIUs; IT technical support and linkages). The
legislative infrastructure has been revised and strengthened (AML and CFT
laws). Typologies have examined and described the regional functioning and
linkages of ML and TF. In summary, national and regional capacities to
investigate cases and bring them to Court have been greatly enhanced over the
past 6 years.
However, all that work can come to nil if
convictions are not then secured.
Thus, one final and crucial step in the chain of opposition to ML and TF,
including issues of corruption, is the strengthening of the capacity of
prosecutors to successfully prosecute cases in court in order to obtain
convictions and deny criminals the benefit of their ill-gotten gains. That is
the aim of the book we are presenting today. This book has been published as
part of our technical assistance to member states.
About the Book
As a leader of the regional alliance
against transnational organized crime, my goal is not to determine the
direction of the wind of change in criminal justice, but to inspire and adjust
the sails – and that is the main thrust of the book to be presented today. The book seeks to provide some guidance to officials
who are involved in the prosecution of economic and financial crimes. It
reviews contending issues, provoking some thoughts, especially on the ways in
which the capacity of prosecutors should be enhanced to effectively deal with
economic and financial crimes. In short, it aims to strengthen the integrity
and professionalism of prosecutors. Interested users will find the book
useful not only in understanding the nature and patterns of economic and
financial crimes, but also the challenges that developing countries, in
particular, face in dealing with these problems.
The book draws inspiration from
experiences of many jurisdictions, which suggest that to successfully deal with
these menaces, strong laws are vital, and this view has been held by the courts
to represent a proportionate response to an insidious problem. In many case
laws, the courts have accepted that if economically motivated crimes are to be
combated, there should be a balance between individual rights and the wider
public interest. Respect for human rights, is after all, integral to crime
prevention and detection, the administration of justice, and indeed, the trial
of suspects.
One of the key objectives of prosecuting economic
and financial crime is to uphold and protect the rule of law. Nevertheless, it
should be remembered that the rule of law is only about crime prevention and
security. Its essential characteristics include due process, restraint by those
conferred with powers to prosecute and the avoidance of arbitrariness. However,
this is often easier said than done because the task of ensuring a balance
between what are in some ways competing interests is not an easy one. This is
in fact a challenge to the prosecutors.
Without pre-empting the reviewer, I take
liberty to say that the book attempted to draw attention to at least the basic
elements that prosecutors should be conscious of, and the challenges they are likely
to face in the course of discharging their duties. If there is any regret about
the book, I would say even at the risk of provoking a demand for a revised
edition, that had I known that this book
would generate the kind of interest and attract the attention we have seen here
today, more time and hard work would have been devoted to make it better than
what it is. Nevertheless, I feel much fulfilled as the author that it has
called for attention in this area of criminal justice. Then what should be the
way forward?
The Way Forward
Looking
forward, the messages are as follows:
First, law enforcement agencies must be capacitated and
strengthened with the necessary resources to discharge their functions. Whilst
there is no limit to what might be considered enough for the efficiency and
effectiveness of law enforcement agencies, the basic parameters for the
resourcefulness can be gauged by the quality of training given to its personnel
and its ability to respond rapidly to the demands of investigating reported
cases. While I do not lose sight of the issue of a reasonable financial
support, I venture to say that the time has come for law enforcement agencies
to realize that an objective assessment of their performance should not be
based on the number of cases they investigate, but rather, the quality of their
investigation that would help in the successful prosecution of cases. As
economically motivated crimes are deterrent sensitive, really I see no reason
why in the wake of limited resources, law enforcement agencies should not adopt
a strategic enforcement approach that focuses on high risk cases with the
potential of making the maximum impact.
Secondly, the laws providing for these offenses should be
reviewed so that they are kept abreast of changing conditions and
circumstances. The laws must be of appropriate scope, taking into account rapid
developments in information technology. As economic and financial crimes are by
their nature difficult to detect, and investigate, let alone prove in the
normal way, such reviews may also consider additional or special powers for
investigators. This, in my view, is the best way to ensure that the fight
against economic crime under the rule of law is sustained and will continue to
be effective.
Thirdly, of cardinal importance to the rule of law is an
independent judiciary. This must include critical elements like institutional
independence from other branches of government; a sound, impartial and
transparent system of appointment of judges; and a reasonable working condition
that would guarantee security of tenure and personal security of judges. In
many jurisdictions, this has been guaranteed under the Constitution but it is
often not met. I would like to argue further because of my passion for the
independence of the judiciary, that the courts have the duty of conducting a
fair trial for those prosecuted for offences and to sentence those who are
found guilty. Challenges may be made to the constitutionality of certain laws,
including those relating to the powers of investigating agencies, as well as
their actions. The courts have to resolve such disputes between the various
arms of the government and between the citizens and the state fairly and
impartially. This is why the judiciary needs total independence.
Fourthly, while what may be referred to as trial in the
“court of public opinion” is totally unacceptable, in laying down sentencing
principles and in sentencing in individual cases, the courts have recognized
that sentences of appropriate severity must be imposed. ‘It must be made clear
to those who may be tempted to act the other way, that if discovered and
convicted, they will be subjected to immediate custodial sentences of a
substantial character’.
Conclusion
In concluding,
Your Lordship, looking into the future, we can only be certain of one thing - there
will continue to be changes in the conditions and circumstances which form the
context in which we fight economic and financial crimes within the rule of law.
And for the crusade to remain effective, we must strengthen the capacities of
investigators, prosecutors and also judges to adapt appropriately, to take into
account these changes. Hence, our technical assistance program consisting of provisions
of legal advisory services, training for investigators and prosecutors, as well
as capacity building programs for judges, will continue to target the specific
areas that we can make the maximum impact in our regional fight against
organized crime, in particular the laundering of the proceeds of crime and the
financing of terrorism.
While thanking
you once more for coming to this book presentation, I wish to reiterate that
eternal vigilance against these phenomena is more critical now than ever
before. The mission must never cease or relent. I wish us all every success in the
never ending battle.
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