Fighting Economic and Financial Crimes under the Rule of Law
Abdullahi Shehu Yibaikwal
The Inter-Governmental Action Group against Money Laundering in West Africa (GIABA)
A Book Presentation on 'Strategies and Techniques of Prosecuting Economic and Financial Crimes'
05 June 2012
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.
2. 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.
3. 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.
4. 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.
5. 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 .
6. 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.
7. 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.
8. All these have made crime truly transnational. Criminals take advantage of new technologies to criss-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 ambits and parameters of law.
9. 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
10. 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.
11. 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.
12. 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.
13. 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.
14. 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 organised 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.
15. 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.
16. 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.
17. 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
18. 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.
19. 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.
20. 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.
21. 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
22. 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 offences 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'.
23. 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.
24. 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.
Thank you for your kind attention!
Merci pour votre attention !
05 June 2012.