The House of Representatives is in the process of granting sweeping powers to judges of High Courts on assets forfeiture. PHILIP NYAM writes on the bill in that regard
With President Muhammadu Buhari’s avowed resolve to fight corruption, the issue of assets forfeiture has become a knotty problem that needs to be put in the right perspective. Since the present administration came into power in 2015, several assets belonging to suspected corrupt persons have been seized or forfeited completely. However, whenever assets of a particular alleged corrupt person are confiscated or condoned, political sentiments are often brought to bear on the process.
Hence, it is common knowledge to hear accusations like “they are not fighting corruption, but witch-hunting their political enemies;’ and “the government is trying to whip the opposition into line,” among other claims. This may have compelled the House of Representatives to pass a bill, whose sole aim is to empower judges of High Courts instead of the executive to order for forfeiture of assets of affected persons.
The bill is titled: “A bill for an act to amend the currency conversion (freezing orders) act cap C.43, Laws of the Federation of Nigeria, 2004 to give discretionary powers to the judge of a High Court, to order forfeiture of assets of affected persons; and for related matters.”
The bill was passed after second reading at Thursday’s plenary and it is sponsored by the deputy speaker of the House, Hon. Ahmed Idris Wase (APC, Plateau). Presenting his lead debate on the bill, Wase said it “seeks to amend of the currency conversion (Freezing Orders) Act Cap. C43, Laws of the- Federation of Nigeria, 2004, to give discretionary powers to judges of the High Court, to order forfeiture of assets of affected persons.” He said: “The discretionary power previously granted to the President of the Federal Republic by the principal act is hereby being replaced by that of a High Court judge to bring it in line with the spirit of the constitution.”
Speaking further, he said: “Section 9 (1) of the Principal Act is amended by substituting the phrase ‘the President may in his discretion direct that’ in line 2, with the phrase ‘the Judge of a High Court may after hearing the parties direct that.’ Furthermore, section 9 (2) of the principal act is entirely deleted. Giving a background to the bill, the deputy speaker submitted: “It is noteworthy that the provision for forfeiture in our laws is geared towards ensuring that persons found guilty of offenses do not benefit from the proceeds of those offences.
“The doctrine of forfeiture is regulated by several legal regime captured in various Laws such as The Code of Conduct Bureau and Tribunal Act, Cap C15, LFN, 2004; Foreign Exchange Monitoring and Miscellaneous Provision Act, Cap F34 LFN, 2004, Financial Malpractices in Bank Act, Cap F2, 2004,EFCC Act, Cap E4, 2004 etc.
“The Currency Conversion (Freezing Orders) Act, first enacted in 1971 contains a provision in Section 9 of the Act dealing with the subject of Forfeiture that vests the discretion to order forfeiture of movable and immovable properties on the President of the Federal Republic.
“Considering that the Constitution of the Federal Republic of Nigeria guarantees Right to movable and immovable property as a Fundamental Right under Chapter IV, Section 44, a person cannot be deprived of such rights except in circumstances stipulated by the Constitution.
“This amendment became necessary because section 9 of the principal act runs foul of the spirit of the constitution as shall be revealed soon.” Explaining the reasons for the amendment, Wase stated that the provision of forfeiture as captured in Section 9 (1) of the principal act states that “notwithstanding the provisions of any enactment to the contrary and subject to the provisions of this Act, the president may in his discretion direct that any account or property, movable or immovable, of any person affected by section 1 or 2 of this act shall be forfeited to the federal government, and effect shall be given to such direction according to its tenor.” He maintained that the following arguments shall be made to highlight the need to amend the above provision by substituting the phrase: “The President may in his discretion direct that” in line 2, with the phrase “the Judge of a High Court may after hearing the parties direct that.”
Wase argued that the above provision, which vest in the president the power to order forfeiture of property, both movable or immovable, is not in spirit with the provisions of the 1999 Constitution (as amended) and hence the need for its amendment.
His words: “Section 44 of the 1999 Constitution (as amended) guarantees the fundamental right of individuals to movable and immovable properties which shall not be deprived except in specified circumstances, which include the ‘imposition of penalties or forfeiture for the breach of any Law whether under any civil process or after conviction for an offence’. (S. 44 (2)(c).
“It is our considered submission that such breach, can only be determined by the judge of a court and should never be at the discretion of the president.” He said the discretion of the president to order the forfeiture of property of an accused person can be subjected to executive abuses and recklessness. “Section 9 in the principal act does not provide any mechanism, whether legal or administrative, through which the president may exercise this power.
Instead the power is left solely at the discretion of the president. “In a country that has witnessed reckless abuse of political and administrative powers, it will be dangerous to allow such unchecked arrogation of powers to determine the forfeiture of a person’s properties.
“Such discretion to be exercised by the president can be contrary to the natural doctrine of fair trial as it amounts to the executive being a prosecutor and a ‘Judge’ in its own case. “This negates the spirit of the 1999 Constitution (as amended) specifies the conditions under which a person can be deprived of movable or immovable properties and that is: ‘under any civil or after conviction for an offence’ after a fair trial. “The president cannot therefore usurp the powers of the courts for such will run foul of the doctrine of separation of powers.”
The deputy speaker explained. Speaking further, Wase noted that the provisions in Section 9 is in contradiction with the provisions of other laws dealing with forfeiture which vest the power to make forfeiture orders in a law court and not in the president. It is therefore important to bring the currency conversion (Freezing Order) act in line with these other Laws.
He said: “Section 19 of the EFCC Act, for instance provides: that (1) A person convicted of an offence under this Act shall forfeit to the federal government (a) all the assets and properties which may or are the subject of an interim order of the Court after an attachment by the commission as specified in section 25 of this Act.
“The court in imposing a sentence on any person under this section, shall order, in addition to any other sentence imposed pursuant to section II of this Act that the person forfeit to the federal government all properties described in subsection (I) of this section.
“While Section 47 (1) of the ICPC Act provides: 47.-(1) ‘In any prosecution for an offence under this act, The Court shall make an order for the forfeiture of any property which is proved to be the subject matter of the offence or to have been used in the commission of the offence.”
Wase argued that vesting in the president the power to make forfeiture order smack of the era of military dictatorship, where the Head of State and head of the Supreme Military Council can unilaterally order the forfeiture of properties of persons without recourse to any judicial mechanism. “This cannot be allowed to exit in a democracy. I therefore urge you all to support this amendment bill,” he noted. The bill was subsequently passed and will now be slated for public hearing. So that Nigerians will have the opportunity to make inputs.