Towards more transparent sale of forfeited assets
On Dec. 24, 2022, the Economic and Financial Crimes Commission (EFCC) announced the commencement of bids for more than 100 forfeited properties in cities across Nigeria.
Two weeks after the advertorial, the commission commenced the sale of forfeited real estate assets by sealed bids to the highest bidders.
Secretary to the EFCC, Dr George Ekpungu, said at the auction that the commission had adopted a competitive bidding format to guarantee accountability and ensure that the government gets the right value for the assets.
Guidelines for the auction included the prohibition of staff of the EFCC and persons who have or are being prosecuted in respect of the assets from participating in the process.
The commission also said that the occupants of the properties for sale had the Right of First Refusal.
It, however, added that it would ensure that former owners of the forfeited properties do not attempt to repurchase the assets by proxy.
“If you have information about any bid by owners of the assets, please let the commission know, and we will take appropriate action, including possible prosecution,” Dr Ekpungu said during the bidding process.
Crucially, the EFCC said proceeds from the sale of the assets will be paid into the Confiscated and Forfeited Properties Account at the Central Bank of Nigeria (CBN).
This is in accordance with Section 69(a) of the Proceeds of Crime (Recovery and Management) Act, 2022.
Indeed, the Proceeds of Crime (Recovery and Management) Act, 2022 stipulates that such proceeds be paid into the said account with the CBN.
However, the Act also assigns the right of forfeiture of assets to other prosecutorial agencies asides the EFCC.
Section 69 partly reads: “There shall be paid into the Confiscated and Forfeited Properties Account— (a) money realised from the proceeds of sale, management or other form of disposal of forfeited assets under this Act and other relevant laws; (b) proceeds of any property forfeited under section 23 (2) (c) of the Code of Conduct Bureau and Tribunal Act, which relates to forfeiture to the Federal Government of any property acquired in abuse or corruption of office…”
Additionally, Section 6 of the same Act called for cooperation among agencies in the sale of such forfeited assets.
“In the performance of their functions and exercise of their powers under this Act, the relevant organisation shall cooperate with other relevant entities. (2) In this section, “other relevant entities” includes any other institution or authority not listed as relevant organisation”, it said.
The EFCC said it would resist attempts by former owners of forfeited assets to reclaim the assets by proxy.
However, judging by allegations that some of its officials also buy forfeited assets by proxy, experts say the Proceeds of Crime (Recovery and Management) Act, 2022 has not gone far enough to address the fact that the prosecutor itself (in this case the EFCC) is an interested party.
Hence, there should either be a provision that would subject the EFCC to a form of check/supervision or provide for an entirely different entity to handle the forfeiture procedure given the conflict of interests.
This is similar to the point recently raised by Rep. Adejoro Adeogun, Chairman of the House of Representatives Ad Hoc Committee on Assessment and Status of All Recovered Loot Movable and Immovable Assets from 2002 to 2020 by Agencies of the Federal Government of Nigeria for Effective Efficient Management and Utilisation.
Adeogun complained that the House does not have the powers to determine how the assets should be disposed of, or to whom they should be sold.
“Then, the enabling law allows the (anti-graft) agencies to auction directly. The EFCC is supposed to auction what it seized, subject to due process,” Adeogun said.
Some stakeholders argue that due process cannot be seen as adequately adhered to if the enabling law allowing anti-graft agencies such as the EFCC to directly auction forfeited assets does not provide for an extra layer of due diligence.
In December 2022, when some forfeited assets were auctioned in Lagos, The Guardian reported that some prospective bidders for forfeited vehicles being auctioned by the EFCC accused the commission and the auction house of shady deals.
The newspaper quoted one bidder to have said: “So far, the experience has been frustrating; first of all, the whole exercise does not appear transparent because it seems some people have been selected to pay for some vehicles.”
It appears that an important step towards the transparent sale of forfeited assets is for the Proceeds of Crime (Recovery and Management) Act, 2022 to be amended.
Hoever, EFCC insists that it has been transparant and followed due process in the discharge of its responsibities and auction process.
Some stakeholders believe that new provision, which would mandate the setting up of an independent inter-governmental commission with civil society participation should be included.
This, they argue, would ensure that a prosecuting agency like the EFCC does not enjoy absolute control over the forfeiture process.
Hopefully, such a step would curb pervasive corruption and abuse of prosecutorial and investigative powers in our clime which constitute a threat to public interest.