A book presentation on ‘Strategies
and Techniques of Prosecuting Economic and Financial Crimes,’ in Abuja,
Nigeria, by Abdullahi Shehu Yibaikwal, Director-General, the Inter-Governmental
Action Group against Money Laundering in West Africa (GIABA).
Introduction
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:
Corruption is indisputably
a grave threat to the well-being of any society and is an evil which cannot be
tolerated; and 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. It’s 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.’
Conclusion
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!
Obrigado!
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